
Class Jl32£. 
Book ' /i/ 97 _ 
CoBiigteN" 

COPHilGm' DEPOSIT 




PATEI^TTS 



AND 



HOW TO MAKE MOKEY \ 
OUT OF THEM 



L^-^ ( 



BY 



w. b.'hutchiis^soi^ 



J. A. E. CRISWEIilj 

? 

MEMBEK8 OF THE NEW YOEK BAR 



New York 
FEDEIilTY PUBEISIIIXG COJ^IPAJSY- 

95 LiBEHTT StSEET 



Copyright, 1899, by Hutchinson & Criswell, Pateats and Patent Law, 
52 Broadway, New York. 



^"l^' 



29323 



JOHN C. RANKIN CO., PRINTERS 
84 CORTLANDT ST., NEW YORK. 



two esopsEs Rscetveo. 







PREFACE 



The main object of this book is to tell how to 
make money out of inventions and patents. 

It treats chiefly of the business side of inven- 
tions. Its authors have had a large experience 
in matters relating to patents, and believe that 
a little honest and reliable advice as to how to 
invent, to patent, to introduce, to sell and to 
protect an invention will be appreciated by all 
who have or are likely to have business in this 
line. I^early all the literature on this subject 
has been in the nature of text-books on the law 
of patents, which are practically of no use to 
the business man, or in the form of adroit ad- 
vertising matter, the object of which has been 
to transfer dollars from the pocket of the 
inventor to that of the advertiser. It is a 
recognized fact that many ingenious men waste 
their ingenuity by exercising it in the wrong 
direction. To such men it is hoped this 
book will be an aid. Others, through igno- 
rance of the nature of patents and the proper 
method of procedure, fall into the hands of 
incompetent and unscrupulous attorneys and 
fail to secure that to which the law entitles 
them, and so see a competency slip from their 
hands. To such this book, if followed, will 
prove a blessing. Again, manufacturers and 



iv PKEFACE. 

other business men often meet with loss in pur- 
chasing patents which do not cover the inven- 
tions to which they relate, or to which the title 
is in some way defective. To these the book 
will be of great assistance. Competent lawyers 
are often unable to advise- their clients as to 
practical means of selling, licensing or intro- 
ducing a particular invention. It is hoped 
that this book will be a help to them. Final- 
ly, we commend this volume to all people 
having any connection with patents, and trust 
that the practical experience which is herein 
embodied may, in some way, be a help to all. 

This book is not intended to take the place 
of an attorney ; it is not published to boom a 
patent agency ; it is not a collection of legal 
lore and decisions for the especial use of law- 
yers, but it is intended as a practical guide for 
inventors, manufacturers, lawyers and business 
men generally who have anything to do with 
patents. 

We have avoided text-book form in this 
book and have refrained from using foot notes, 
as these, to the average reader, are confusing 
and disconcerting. The reader is asked to take 
our word for the facts herein, and as to matter 
of opinion and advice to take it for what it is 
worth. 

New York, February, 1899. 



CONTENTS 



BOOK I. 



PATENTS GENERAIiliY. 
CHAPTEK. PAGE. 

I. Origin and Nature of Patents — Modern Appli- 
cation of the Term, 1 

II. Importance and Value of Patents — Their Effect 

on Trade, 5 

III. Patents in the Nineteenth Century — A Few 

Kemarks to Manufacturers, .... 12 

IV. What is Patentable 20 

V. Caveats, 27 

VI. Who May Obtain a Patent, .... 31 

VII. Concerning Patentability 38 

VIII. Prior Use, Public Use, Experiments, . . 46 

BOOK II. 

PATENT OFFICE PEACTICE, TRADE-MARKS, COPYRIGHTS. 

I. The Application, .50 

II. Appeals, 61 

III. Interferences, 64 

IV. Disclaimers and Reissues, 71 

V. Abandoned, Forfeited, Revived and Renewed 

Applications, 79 



vi CONTENTS. 

VI. Infringement, Infringing Inventions and Acts 

— Eemedies for Infringement, ... 82 

VII. Trade-marks, Prints and Labels, ... 96 

VIII. Copyrights 109 

IX. Title, Assignment, Grants, Mortgages and 

Licenses, 128 

X. Foreign Patents 136 

BOOK III. 

PATENTS GOMMERCIAIiliY CONSIDBEED. - 

I. "What to Invent and How to Invent, . . 140 

II. Introduction and Sale of Patented Inventions, 151 

III. Sale or Promotion by Joint-Stock Companies 

or Corporations 164 

IV. The Promoter 182 

APPENDIX. 

Forms, 195 

Index, .219 



PATENTS 

AND 

HOW TO MAKE MOl^EY OUT 
OF THEM 



BOOK I, 



CHAPTER I. 

OEIGIN AND NATURE OF PATENTS— THE 
MODERN APPLICATION OF THE TERM. 

Originally patents were monopolies and were 
more often granted to give the patentee a 
monopoly in large tracts of land for commer- 
cial, mining, manufacturing and general busi- 
ness purposes, such, for example, as the 
patents granted to the first colonizers in 
America for immense districts of land, to 
which the name of the original patentee has, 
in many cases, been applied. 

Often at the present time the Grovernment 
grants to homesteaders and other persons 
patents for the land which they have pre- 
empted, purchased or otherwise secured. But 
in its ordinary application a patent is a Grov- 
ernment grant giving an inventor the exclusive 
right to make, sell and use his invention for a 
term of years. In the United States a patent 
is granted for seventeen years. 



2 ORIGIN AND NATUEE OF PATENTS. 

A patent, in its modern acceptation, is not a 
monopoly, but is a consideration offered as an 
inducement for a person to invent. In other 
words, it is a prize or reward for his ingenuity, 
and gives him the exclusive right to make, use 
and sell the invention for a limited term in con- 
sideration of the benefits of the invention to 
society. 

To secure a valid patent, therefore, the Gov- 
ernment requires by law that the inventor shall 
file in the Patent Office drawings and descrip- 
tions of his inventions, sufficiently clear to 
enable persons skilled in the art to make and 
practice the invention, so that at the end of the 
term of the patent the public can have access 
to the invention through the records and so 
reap the benefits thereof. 

As above remarked, patents were originally 
monopolies, but in the 21 James I., 1624, the 
Statute of Monopolies, so called, was passed, 
by which the granting of special and exclusive 
privileges in trade were prohibited, but the 
statute specifically excepted *' letters patent 
and grants of privileges for the term of one 
and twenty years or under, heretofore made 
for the sole work or making of any manner of 
new manufacture within this realm to the first 
and true inventor or inventors of such manu- 
factures." 

This statute marked the beginning of modern 



MODERN APPLICATION OF THE TERM. 3 

patent laws for the protection of new and useful 
inventions. 

In France the first patent law was passed in 
1791. In the United States the patent system 
has grown up under a positive grant in the 
Federal Constitution and by reason of Statutes, 
the first of which was passed in 1790, and others 
from time to time to the present day. 

A patent is wholly a creature of statute, and 
other nations have been somewhat slov/ in fol- 
lowing the lead of Great Britain, the United 
States and France, and even at the present 
time there are some countries which have no 
patent law. Nearly all the civilized nations, 
however, recognize the importance of a patent 
system to foster and encourage inventions, and, 
at the present day, there are patent laws in 
nearly every civilized country. 

As a rule, the laws are such that an alien 
may have practically the same protection for 
his invention as a native, though in many 
countries it is stipulated that the invention 
must be worked within a certain specified time 
or the patent forfeited. 

It is contended by many that a provision 
of this nature should be made in the United 
States, so as to prevent large corporations 
from buying and controlling numerous patents 
for inventions which are never marketed, thus 
depriving the public of the benefit which it 



4 EFFECT OF PATENT SYSTEM. 

should receive, but it is a question whether the 
time is ripe for such a change. 

It is as true now as of old that '* nothing suc- 
ceeds like success," and it is a fact beyond dis- 
pute that the patent system of the United States 
has brought inventions to a wonderful state of 
efficiency, so that the country leads the world 
in valuable improvements. 



CHAPTER II. 

IMPORTANCE AND VALUE OF PATENTS — THEIR 
EFFECT ON TRADE. 

Visit an oculist and, whatever your bodily 
ailment, he will probably tell you that the diffi- 
culty originates with the eyes. A skilled sur- 
geon will likewise conclude that the supreme 
remedy for every ill is the knife. So, politic- 
ally, one set of people will attribute the pros- 
perity of the United States to its natural 
resources, another to the policy of protection, 
another to certain financial systems, and so on 
ad infinitum. 

But we believe it is a demonstrable fact that 
the patent system of America has done more to 
promote its commercial supremacy, its wonder- 
ful prosperity and general well-being than any 
other cause. 

The workings of the patent system are quiet 
and unobtrusive. The inventor does his work, 
and is, as a rule, comparatively unknown. He 
is not greeted with the applause of the fighting 
man or the orator, but he does and has done 



6 IMPORTANCE AND VALUE OF PATENTS. 

more for tlie world than any other man or set 
of men. 

The patent system of America is more liberal 
to the inventor than that of any other country, 
and it has been the policy of the Government to 
do what it could to encourage inventions, not- 
withstanding the fact that the agricultural 
communities have usually opposed patents as 
being in the nature of monopolies. 

The men who have made American manu- 
factures famous and have, by their improve- 
ments, brought the United States to the front 
rank as a manufacturing and commercial na- 
tion, would not have brought out their improve- 
ments and could not have found money to 
exploit them were it not for the fact that the 
Government has provided reasonable protection. 

People do not work for the love of working. 
It is not human nature. There must be some 
sort of encouragement and stimulus. The pat- 
ent system of the United States has provided 
this stimulus, and has opened almost the only 
avenue of success on which the poor man can 
successfully enter. 

It is generally recognized that patent law 
forms an important branch of American juris- 
prudence, still the real value of American 
patents and of the American patent system is 
appreciated by comparatively few people, and 
few know the boundless benefits the world has 



IMPOKTANCE AND VALUE OF PATENTS. 7 

derived from the acMevements of American 
inventors. Many of them have cut niches in the 
temple of industrial fame that will last forever. 

When it is remembered that the richest 
nation in the world is now the United States, 
that her improvements and manufactures are 
fast taking the lea.d, and that the whole volume 
of manufacturing business in America is or has 
been based on patents — that is, that the articles 
made or the machinery for making them are or 
have been subject to patent — then the enormous 
value of patents to the public begins to be 
appreciated. 

The principle of our patent system was early 
recognized ; for instance, before the patent law 
of 1790 Massachusetts granted in 1786 a cash 
subsidy to Alexander and Robert Barr, of Scot- 
land, and Mr. Orr, of East Bridgewater, Mass., 
to encourage the introduction of cotton-manu- 
facturing machinery. This was done to carry 
into effect the wonderful inventions of Har- 
greaves and Arkwright. Aid was also granted 
later to Almy, Brown and Slater, who first 
manufactured cotton goods in Rhode Island, 
and subsequently the inventor Lowell, whose 
monument is one of the most thriving manufac- 
turing cities in the Union, made his first loom, 
the model being completed in 1812. This he 
patented, and it marks an epoch in the manu- 
facturing history of America. 



8 SOME FAMOUS INVENTORS. 

Eli Whitney, wliose name has for generations 
been a household word, was a poor lad ignorant 
of the cotton industry, and yet he invented the 
cotton gin in 1793, which made it possible to 
prepare cotton cheaply for manufacturing pur- 
poses, to supply the previously invented spin- 
ning-jenny and the subsequently improved 
loom, so that thus early, through the aid of 
the States and the protection of the patent 
system, was inaugurated an industry the im- 
portance of which can scarcely be realized. 
The history of the cotton industry is substan- 
tially a duplicate of all the other important 
manufactures of America. 

The names of McCormack, Heines, Ketchum, 
Manny, Wood and others are familiar wherever 
mowing and reaping machines are known and 
the inventions relating to mowers and reapers 
and other agricultural instruments which have 
been fostered by the patent system would not 
probably be brought to public notice except for 
it and by reason of this protection. America 
now supplies agricultural machinery to the 
world, and not only that, but is able to produce 
crops at a price which defies competition and 
which enables American products to be sent to 
the four corners of the earth. 

The career of Fulton in connection with steam 
navigation is well known, and the importance 
of his inventions is understood by every school- 



SOME FAMOUS INVENTORS. 9 

boy. All know how Singer, Howe, Wheeler, Wil- 
son and others have made the sewing-machine 
known in every hamlet, not only in America, 
but in Europe ; how modern processes, every 
one of which is or has been patented, have en- 
abled America to ship iron and steel even to 
Great Britain, as well as to all other parts of 
the earth ; how American locomotives are now 
rolling through the wildernesses of Siberia and 
over the mountains of Japan ; how American 
boots and shoes are sold everywhere, and how 
every one of these industries has been made 
what it is by reason of improved machinery. 
Comparatively young people can remember 
how boots and shoes were made by hand in 
scattered country districts until the introduc- 
tion of the McKay machines subsequent to 
1860, and immediately thereafter how import- 
ant cities sprung up because the machinery 
made it possible to turn out the manufactures 
cheaply and in small localities. 

It is as familiar as A, B, C how Morse and 
Bell and Edison and Thomson and other lesser 
lights have made the electric phenomena ser- 
viceable ; have ''harnessed the lightning" and 
have made what was formerly a superstitious 
wonder a common vehicle of every-day use. 

Most, if not all, of the men referred to above, 
together with others who are well known, would 
have lived and died poor were it not for the fact 



10 EFFECT OF PATENTS. 

that the patent system has opened to them a 
laudable source of wealth. It must be remem- 
bered that while the patent system has been a 
blessing to these men, still the chief blessing 
has, after all, been to the American public, to 
whom the inventors have turned over the won- 
ders of the nineteenth century, and by whom 
what were formerly luxuries are now brought 
to every household. 

It cannot be contended that these industries 
would have been promoted by the expenditure 
of years of toil on the part of those individuals 
and the expenditures of vast treasures unless 
the patent system had offered reward for such 
endeavors and for such expenditures. From 
these sources have resulted the wonderful 
manufacturing conditions in America, and it 
seems clear that the patent system has been of 
more value to Americans than any other one 
thing. 

Not only this, but the beneficent effects are 
felt in war as well as in peace. Every manu- 
facturer and almost every firm now knows the 
difference between the work of a clodhopper 
from darkest Russia and that of an intelli- 
gent native American. The vast difference is 
due, in a great measure, to the fact that almost 
every American is at the present time more or 
less familiar with mechanics, owing to the wide 
distribution of mechanical inventions. As long 



EFFECT OF PATENTS. 11 

ago as the civil war it was found that every 
company contained men who could, when occa- 
sion required, rig up a locomotive, repair a 
telegraph line, send telegrams if necessary, 
run a printing office, or do anything which the 
occasion demanded. So, likewise, in the recent 
Spanish war, the great superiority of the Ameri- 
can navy is said to lie principally in the fact 
that it was manned chiefly by mechanics who 
were familiar with mechanism and who could 
handle with effect machinery constituting a 
modern fighting navy. 

It is, of course, understood that the part any 
one of the various industries plays or has played 
in American development is in many instances 
subject-matter for a volume itself, and the mat- 
ter is only referred to here in a general way to 
illustrate the immensity of American manufac- 
tures and the fact that these manufactures 
have been introduced primarily by the Ameri- 
can patent system. 



12 



CHAPTER III. 

PATENTS IN THE NINETEENTH CENTURY AND 
A FEW REMARKS TO MANUFACTURERS. 

We are apt to forget, surrounded as we are 
by tlie many comforts and inventions of the last 
few generations, that the dawn of the ^Nine- 
teenth Century found mankind in about the 
same condition, so far as industrial develop- 
ment is concerned, as he was when the pyramids 
were built or when Phidias adorned Athens 
with the artistic treasures which were a copy 
for posterity. 

The difference was merely one of degree. The 
carrying trade of the world was done in ships 
which were the same in principle as those the 
hardy !N'orsemen navigated in their early trips 
to Newfoundland and the American Continent, 
and with which Columbus made his memorable 
voyage across the Atlantic. The student did 
not ''burn the midnight oil," but with diffi- 
culty perused his after-dark studies by the light 
of a pine knot or a tallow dip. One modern steam- 
ship like the "Kaiser Wilhelm Der Grosse" 
will carry more merchandise in a year than per- 



PATENTS OF THE NINETEENTH CENTURY. 13 

haps the whole commerce of America amounted 
to at the beginning of the century. Steam did 
not affect the ocean carrying trade, the land 
carrying trade or passenger traffic ; New York 
and Boston were far distant municipalities; 
Philadelphia was as far from New York as 
Denver is now. Communication was so slow 
and uncertain that only the most important 
events were attempted to be transmitted and the 
result was often disastrous. As late as the war 
of 1812, the most important battle was fought 
long after the treaty of peace had been agreed 
to. Our late war with Spain was fought and 
finished in two hemispheres in less time than it 
took to get a message to Europe and return. 
Practically everything consumed was of hand 
manufacture and mostly homemade. 

The great industries of modern times were as 
yet undreamed of. It is said that the steel out- 
put of the United States for 1898 was greater 
than the steel manufacture from the time of 
Tubal Cain to the beginning of the Nineteenth 
Century. 

Not one of the great enterprises of the present 
era had been inaugurated. The standard of 
living was low. Armies could be moved no 
quicker than in the days when Hannibal 
marched his legions from Spain to Italy, or 
when Julius Csesar made his wonderful march 
across the Alps. The telegraph, the telephone, 



14 PATENTS OF THE NINETEENTH CENTURY. 

the electric light, the typewriter, the sewing 
machine, the mowing machine, the locomotive, 
the modern weaving machinery, in fact nearly 
everything of common and necessary use in the 
industrial arts, was as yet undiscovered. 

Alfred Russell Wallace, who cooperated with 
Darwin in formulating the doctrine of the 
** survival of the fittest" and who is conspic- 
uous as a writer of natural history and a great 
and scientific observer, says that the Nineteenth 
Century marks the most important epoch within 
the whole historic period or, perhaps, since the 
stone age. He calls it '*The Age of Inven- 
tion" and compares the beginning of this era 
with the introduction of fire. 

To enumerate in these pages the many won- 
derful inventions or more than hint at their im- 
portance would require more space than could 
be given in a book of this character. The im- 
portance of the Nineteenth Century inventions, 
scientifically, industrially and socially, are well 
understood. But what is not understood and 
what has been generally overlooked is the fact 
that this supremely important period is due 
largely to the beneficent patent system of the 
most progressive nations. Naturally we find 
the most liberal patent system in the country 
which leads the procession in inventions. 

It may be said that the patent system follows 
inventions, and while it is true that one is de- 



STIMULUS NECESSAEY. 15 

pendent on the other, still it is certain that 
nearly all the inventions which have done so 
much for the world and which have raised the 
standard of living and general intelligence 
would never have been commercially and prac- 
tically developed were it not for the initial pro- 
tection of the patent system. 

It is not necessary to quote authorities to 
show that man is inherently selfish, and while 
he loves approbation, still he would never go 
to the extent to which most great inventors have 
had to go, would not have denied himself and 
his family, would not have labored for years at 
great expense and at great suffering in some 
cases, merely to secure the honor of bringing 
forth a great invention. It has required some- 
thing in the nature of a pecuniary reward or, at 
least, something to hold out the hope of reward, 
to induce the inventor to properly develop his 
inventions and to exercise his ingenuity to the 
utmost. 

It is common to laud the orator or the great 
general or some philanthropist far more than 
the inventor, but the real inventor is the king 
among men. He does not always invent a 
machine, but his breadth of mind and his sweep 
of view comprehend everything between heaven 
and earth. He fears nothing, not even ridicule, 
but has a mind open to discover truth where- 
ever it may be found. He does not always in- 



16 LITTLE THINGS. 

vent a macliine. He may, like Homer or Mil- 
ton, exercise his mental characteristics to pour 
forth songs to delight the ages. He may, like 
Galileo or Columbus or Copernicus, change the 
human idea of the universe, or he may, like 
Fulton or Morse, use his ingenuity to indus- 
trially help the race, but in every case the men- 
tal attitude and characteristics are the same. 

It is to such men that the world should do 
homage. 

Perhaps it may not appear at first view what 
this has to do with the commercial value of 
patents, but on an instant's reflection it will be 
seen that these inventions, which really consti- 
tute the modern industrial fabric, have all been 
the means of colossal fortunes for those inter- 
ested in them, especially in view of the fact that 
every great invention, instead of closing the 
avenue of inventive work along that line, has 
always opened a field which has been filled im- 
mediately by lesser iaventions worthy, how- 
ever, of commercial exploitation and, as a rule, 
profitable. 

The smaller inventions are frequently in fact 
the most profitable to one whose means are 
somewhat limited, because they can be devel- 
oped and exploited for a comparatively small 
sum, while the larger affairs usually require 
modest fortunes to show their worth or the lack 
of it. 



LITTLE THINGS. 17 

The '' little things" are often '^the big 
things" in the aggregate. 

Everyone knows how fortunes have been 
quickly made out of glove fasteners, shoe eye- 
lets, and a hundred other '^ little things." A 
match is a little thing, but yet the match in- 
dustry is large enough to absorb the attention 
of one of the great trusts of the country. And 
the industry is paying dividends on $18,000,000. 

Everyone may not know that even the wooden 
toothpicks which are apparently so insignificant 
are made and sold in carload lots, and that 
all the machines for making them have been 
patented, while originally the toothpicks them- 
selves were subject to patent. Clothespins, 
shoe nails and even peg wood for boots are all 
sold in immense quantities. 

Several fortunes were made in the manufac- 
ture of paper collars. A good toy will usually 
realize a fortune for its promoters in a season 
or two. And so we might go on indefinitely. 
The point is that, if there is a reasonably large 
sale for an invention and it is properly pro- 
tected, it is worthy of attention. If it is not or 
cannot be patented, it is not ordinarily worthy 
of attention for competition then reduces the 
price to practically the cost of the labor and 
material of which it is made. 

A device, machine or process which is patented 
and which to any appreciable extent decreases 



18 VALUE OF PATE.NT SYSTEM. 

the cost of making any staple goods is of self- 
evident value. Competition is so close that a 
small saving in cost of goods, or a means of 
making better goods at a given cost, is of great 
value, the value depending, of course, on the 
line of goods and the relative quantity con- 
sumed. 

Nothing in the manufacturing line is so good 
as a good patented invention. Suppose, for in- 
stance, that the leading manufacturers in a cer- 
tain line have pooled or formed a trust. Such 
a trust can easily, by their well-known methods, 
crush any outsider having only its facilities. 
But if the outsider gets control of a better article 
or a cheaper or better machine or process of 
manufacture, then the trust must make terms 
with him. 

It will be seen that the patent protection 
offers almost the only means of securing large 
profits on a reasonable investment so far as or- 
dinary industrial business is concerned, that is, 
business outside of the great monopolies which 
have absorbed certain lines of commerce. 

There are only a few ways of avoiding this 
destructive competition. One is by combining 
or pooling all the industries of a certain kind 
in the form of a trust and another is to manu-. 
facture some articles on which there can be 
patent protection, or which have become known 



VALUE OF PKOPER PKOTECTION. 19 

and favored by the trade and are recognized by a 
lawful trade-mark. 

This fact should make the manufacturers — 
and does make them — eager to take up a good 
invention and it should also cause them to be 
very careful to see that the invention is prop- 
erly patented so that they can safely enter into 
its manufacture. 

The alert inventor "will also strive to invent 
along practical lines as pointed out in another 
chapter. 

The manufacturer or inventor will likewise be 
on the lookout for the opportunity which may 
show itself but once and then momentarily ; and 
both knowing the many elusive qualities of 
patent rights and that a patent is a creature of 
statute, shaped in every instance more or less 
according to skill, should be careful to see that 
their interests are properly safeguarded. This 
can only be done by those skilled in such mat- 
ters, and many an inventor, when the validity and 
scope of his patent has been assailed or he wishes 
to sell his patent, has found that he has little 
or nothing of value for the reason that his ap- 
plication for a patent was not properly prepared 
and prosecuted while pending in the Patent 
Office. 



20 



CHAPTER lY. 

WHAT IS PATENTABLE. 

In the United States patents are issued for a 
machine, an article of manufacture, an art or 
process, a composition of matter, a design. 

Machine. — The Standard Dictionary defines 
a machine as any combination of inanimate 
mechanism for utilizing or applying power. 
This broad view is the one adopted by the 
Patent Office and the courts. 

Any new and useful machine is patentable. 
As to utility, this may be nominal ; that is to 
say, if the machine is at all useful and is new, 
it is patentable, but the machine must be new 
or an improvement on existing machines. As 
to novelty, this does not usually consist in a 
wholly new machine, for it is very seldom that 
a machine is made with new parts. In fact, it 
is doubtful if one is ever made in which all the 
parts are new. 

Usually a machine consists of a combination 
of elements old in themselves, but combined in 
a new way so as to accomplish a new result or 



MANUFAOTUKE. 21 

to accomplisli an old result in a new or better 
way. The one essential is that there must be 
some new operative change in the machine. 

If the difference in construction between the 
new machine and the old is slight but the dif- 
ference in results is obvious, then there is in- 
vention and the novelty contained in the struc- 
ture is patentpjDle. But let the machine be 
ever so new, its parts or operative means and 
not its principle must be claimed, and while a 
skillful attorney will draw claims broad enough 
to cover all analogous structures and so secure 
the field to the inventor, still, within the mean- 
ing of the United States Patent Law, one cannot 
claim a principle, as a principle is too indefinite 
and intangible to come within the scope of the 
claim. 

Let it be borne in mind in connection with 
this subject and those immediately following, 
that an invention is not necessarily a new crea- 
tion, but the inventor may simply perceive a 
means or a way of bettering mechanical con- 
trivances and accomplish the result by im- 
proved means which involve sufficient novelty 
to come within the scope of the term invention 
and to entitle him to a patent. That is, the im- 
proved means involve something more than 
mere mechanical skill. 

A Manufacture. — A manufacture is any- 
thing made by industrial art or processes or 



22 COMPOSITION OF MATTER. 

skill, whether it be made by hand or by 
machinery. Generally speaking, an article of 
manufacture, as contemplated by the patent 
law, comprises any vendible article of trade or 
commerce which is not a machine or a com- 
position of matter ; for example, a bag, a chair, 
or a shoe is an article of manufacture. 

Composition of Matter.— Within the mean- 
ing of the patent law, a composition of matter 
is a combination of two or more substances 
making a substance which has some useful 
function. A well-known example of this kind 
is an explosive, a plating compound, a polish- 
ing substance, a substance for removing hair 
from hides or grease from leather, et cetera. 

In applying for a patent as stated in another 
chapter, the applicant must specify the ingre- 
dients, the proportions in which they are 
mingled and the manner of combining them, 
whether chemically or otherwise, so that any 
person skilled in the art can, from his descrip- 
tion, make the new composition. 

Improvements.— An improvement, as its 
name indicates, is usually an advance made in 
an art or the construction of a machine which 
improves upon one already existing. This is 
the character of most inventions. Sometimes a 
person will invent or discover something en- 
tirely new, like Morse's invention of the tele- 
graph, or Beir s invention of the telephone, and 



AKT OR PEOCESS. 23 

a multitude of inventors will follow after and 
improve upon tlie original device ; such im- 
provements, if tliey are really improvements 
or if tliey materially affect the function of the 
device, are patentable. 

Art or Process. — An art or process, within 
the meaning of the patent law, is a method of 
reaching or accomplishing a certain result as 
distinct from the result itself or from the mech- 
anism or means for accomplishing the process. 

An art is the most comprehensive of inven- 
tions as it may include practically or may 
really cover both the method or process and 
the instrumentalities used in the operation. 
Some means must be described for carrying the 
process into effect, but in order that the process 
and the instrumentalities or apparatus may be 
included in one patent, they should be so de- 
pendent, one on the other, that they cannot 
practically be separated. 

Broadly and generally an art or process is a 
new operative means for accomplishing a cer- 
tain result. A patent for an art is usually the 
broadest kind of a patent. For example, if a 
process comprises three distinct steps in the 
treatment of a certain subject-matter, the claim 
vrill cover those three steps and it will not 
matter whether the steps are performed by 
hand, by machinery or in what way they are 
performed. The mere fact that they are per- 



24 DESIGN PATENTS. 

formed by an unauthorized party will constitute 
an infringement of the claim. It should be 
clearly understood that the art or process is 
entirely distinct from any mechanism employed 
in carrying the art or process into effect, al- 
though if the mechanism and the process are 
dependent one on the other, both may be in- 
cluded in the same patent and both the process 
and the apparatus or mechanism covered by 
independent claims. But though an art com- 
prises so much, it must be capable of producing 
tangible, physical results, or else it is too in- 
definite to come within the purview of the 
patent law. 

This subject of what can be included in a 
claim for an art and what should be included is 
one requiring the utmost skill and discrimina- 
tion. The claims should include only what 
can be rightly claimed under a patent for an 
art or process. They must not be so broad as 
to claim an inoperative art, they should not be 
so narrow as to limit the patentee too much in 
practicing the art or process, but there are so 
many nice distinctions relating to this matter 
of claims that it must be left to the attorney, 
who will judge by the circumstances of each 
individual case. 

Designs.— The statute relating to designs 
reads : *' Any person who, by his own industry, 
genius, efforts and expense, has invented and 



DESIGN PATENTS. 25 

produced any new and original design for a 
manufacture, bust, statue, alto-relievo, or bas- 
relief; any new and original design for the 
printing of woolen, silk, cotton or other fabrics ; 
any new and original impression, ornament, 
patent (pattern), print, or picture to be printed, 
painted, cast or otherwise placed on or worked 
into any article of manufacture ; or any new, 
useful and original shape or configuration for 
any article of manufacture, the same not 
having been known or used by others before 
his invention or production thereof, or patented 
or described in any printed publication, may, 
upon the payment of the fee prescribed, and 
other due proceedings had the same as in cases 
of inventions and discoveries, obtain a patent 
therefor." 

Design patents are issued for three and a 
half, seven and fourteen years and the appli- 
cant must elect, when he files his application, 
for which term he will have his patent issue. 

Inventors frequently have an idea that they 
can procure design patents cheaply and that 
they will cover the same ground as a patent for 
a structure. This is not usually so. Design 
patents relate exclusively to the shape, outline 
or configuration of any figure, article, print, 
fabric and the like. The claim being merely to 
the configuration, then, it is obvious that any 
radical departure from such configuration will 



26 DESIGN PATENTS. 

not be an infringement of a patent for a design. 
Generally speaking, the rule is the same as in 
regard to an infringement of a trade-mark, 
that is : Will an ordinary purchaser be de- 
ceived and mistake one design for the other ? 

While the claim of a design patent relates 
exclusively to the coniiguration or shape, out- 
line or ornamentation, still there are cases 
where articles of manufacture and even mechan- 
ical articles are valuable chieHy because of 
their peculiar shape and in such case a design 
patent is the proper means of protecting them, 
because, as a rule, a patent for the structure 
cannot be obtained. Any new coniiguration 
can be covered by a design patent even though 
it may not be purely ornamental. For exam- 
ple, a man may have a machine frame of a new 
shape, which shape is advantageous or which 
increases the value of the machine, and such a 
frame may be covered by a design patent. 
Perhaps it may be necessary to cover the frame 
of a cultivator, the body of a carriage, orna- 
mental designs of fabrics, such as carpets, laces, 
and a thousand and one other articles, and so 
long as the form or configuration is essential, 
the design patent is usually the proper and 
often the only means of protection. 



27 



CHAPTER y. 

CAVEATS. 

Caveats, while still allowed by the statute 
and filed to a certain extent in the Patent Office, 
are gradually falling into disuse. A caveat is 
really of little value to the inventor. When a 
person has an invention, more or less complete, 
he can file a written description of the inven- 
tion, together with a drawing, if this can be 
done, in the Patent Office by paying the pre- 
scribed fee. The caveat will be in force for a 
year, and can be renewed from year to year by 
renewing the fee. 

Caveats can be filed by citizens of the United 
States only, though it has been recommended 
to Congress that this privilege be extended to 
foreigners. 

The caveat does not protect the inventor and 
does not give him any right, as, for example, 
the right conferred by the issue of a patent, but 
it merely entitles him to notice in case some 
other party applies for a patent for substan- 
tially the same thing while his caveat is in force. 



28 CAVEATS. 

As the caveator has not an exclusive right, 
the only advantage from such a notice is that 
he can himself file an application for a patent, 
and thereupon he will be declared in interfer- 
ence with the other party who has filed an 
application for a patent on a similar article and 
has filed similar claims. This advantage is of 
a doubtful character, and the caveat really 
amounts only to evidence ; that is to say, it is 
good evidence that at the time of filing his 
caveat he had an invention in as complete a 
condition as his caveat papers show. If he 
then files his application, and claims the same 
matter claimed by the other applicant he has 
an interference suit on hand. The subject of 
interferences will be treated hereafter, but as it 
is mentioned incidentally here, it may be well 
to say that an interference, so styled, is a con- 
test between applicants who claim a patent on 
the same invention, and as the patent obviously 
cannot be issued to both, this contest has to be 
first settled, and the patent will be issued to the 
one who proves to be the first inventor. This 
matter of interferences is a very important one, 
the practice concerning which is intricate and 
not thoroughly well settled in every particular, 
but the subject will be treated in a separate 
chapter. 

Concerning the subject in hand, to wit, ca- 
veats, it will be clearly seen from the few 



CAVEATS. 29 

remarks relating to them that a caveat is merely 
evidence, and that the inventor would be as 
well off if he had merely made a drawing of his 
invention and had it witnessed by reputable 
persons who could make oath that they had 
seen it at a certain time. 

If instead of filing his caveat, he had made 
his invention sufficiently complete to enable 
him to show an operative device, and had filed 
his application for a patent, he would have 
been much better off, because the first applicant 
has a decided advantage in an interference case, 
and the burden of proof is on the second appli- 
cant, who must show by strong proof that he 
was the first to conceive and was using rea- 
sonable diligence to reduce the invention to 
practice. 

There are cases where it may be advisable to 
file a caveat. Such a case might be, perhaps, 
where a party has in mind a complex inven- 
tion, partially completed, and only knows in a 
general way how he will work out the details 
and complete the invention. In such case it 
may be to his advantage to file a caveat for the 
invention as far as completed, which would be 
evidence itself of having made the invention at 
the date of filing the caveat and to the extent 
disclosed therein. 

The practice of filing caveats is not recom- 
mended to the average inventor ; first, because 



30 CAVEATS. 

of the inadequate protection of the caveat, and, 
second, because of the expense — that is to say, 
while a caveat is not in itself very expensive, 
still, if properly filed, it requires the prepara- 
tion of drawings and specifications by an expert, 
or, at least, a specification, and the cost of this, 
taken in connection with the Government fee of 
ten dollars, is something to the average inventor, 
who is not supposed to be very wealthy. 

The fact that caveats are of little value is 
largely owing to the further fact that while the 
caveator is entitled to notice in case another 
files an application for a similar thing, still the 
Patent Office is not bound to give him such 
notice, and he has no remedy for the neglect of 
the Office to notify him. 

Moreover, as the caveat fees do not apply on 
the patent fees when the patent application is 
made, the cost of the caveat seems to be in 
nearly every instance so much time and money 
wasted. The better practice is for the inventor 
to complete his invention at as early a date as 
possible and make application for letters patent. 



31 



CHAPTER YI. 

WHO MAY OBTAIN A PATENT. 

Section 4886 of the Revised Statutes says that 
"Any person ^ * '^ may -^ ^ '^ obtain a pat- 
ent." The words "any person" have been 
construed to mean a man or woman, whether 
the woman be married or single ; and a minor, 
male or female, as well as any person embraced 
in these classes and also an alien. It has been 
further held that any number of persons whose 
combined efforts resulted in bringing forth an 
invention could make application as joint in- 
ventors and the patent would issue to them. 

In many foreign countries, the first to intro- 
duce an invention can obtain a patent, as, for 
instance, in Great Britain. But in the United 
States a valid patent can only issue on the ap- 
plication of the real inventor or inventors, who 
must make oath to the invention and if the ap- 
plication and oath are made by one who is not 
the real inventor and the patent afterward 
issues to him the patent will be held invalid if 
the facts in the case are proved. Further, the 



32 WOMEN INVENTOKS. 

invention and patent to issue may be owned by- 
some person or corporation other than the in- 
ventor, but, notwithstanding this fact, the in- 
ventor must make the application. 

If the invention has been assigned and the 
inventor refuses to make the application when 
under obligation to do so, the owner can apply 
to the proper court and get an injunction re- 
straining the inventor from disposing of the 
invention and can compel him to make the ap- 
plication. If there is no assignment, but only 
an agreement to assign, he can be compelled to 
execute an assignment of the invention to the 
proper party. 

Some women are prolific inventors and many 
of their inventions are and have been of great 
value. This is true to such an extent that the 
Patent Ofiice of the United States has published 
and has for sale pamphlets styled " Women 
Inventors ' ' and the mere list makes quite a re- 
spectable volume. 

In connection with this subject of women in- 
ventors, it may be of interest to note that one 
of the first inventions of which there is any 
record was made by a woman. To quote from 
a recent reported lecture of Eev. Dr. N. D. 
Hillis : '* A thousand years ago the race dwelt 
to the east of the River Jordan. Men came to 
little caves and these little caves had little 
doors, and these doors were hung on hinges. 



WOMEN INVENTOKS. 33 

Years before that, a young girl, with a bloom 
on her cheek, lived with her parents in one of 
these caves, and one Sunday night came a 
young man from over the hills to see the girl's 
father, the first time. The next day she said : 
'Now, father, why couldn't this family have 
two caves, one for home folks and one for com- 
pany ? ' And the father said yes, and the next 
Sunday night the young man came over to see 
the girl's mother, perhaps, and after that the 
young girl said : ' Father, we ought to have a 
door between the two caves so that it can be 
shut.' And she wanted a door hinge, that the 
door might be closed at will between the two 
caves. They had never seen hinges, so she set 
her wits to work to invent a door hinge, and 
she made one of the first inventions man ever 
saw. No, she didn' t invent it at all ; she copied 
it. Here is the model of all the hinges in the 
world, the hinge in the elbow. The other day 
a man was digging in the sand to the east of 
the Jordan and came upon a tablet on which 
was the image of a young girl ; in her left hand 
she has a little chisel and in her right hand she 
has a large hammer. In front of her is a door 
hinge, and over at this end is the outline of a 
little elbow. That has been preserved for five 
thousand years to tell us how this young girl 
invented the first tool that the world ever 



34: JOINT INVENTORS. 

Joint Inventors.— Where an invention is 
the joint product of two or more minds work- 
ing together application must be made by all 
the parties who contribute to the invention. It 
is not necessary to make joint inventors, that 
one should produce or invent a distinct part of 
a machine, a second, another distinct part, 
because, if this is the case and the distinct part 
mentioned constitutes an operative device, each 
must apply for a patent on his own invention, 
but if there is a joint contribution, that is to 
say, if one brings, for instance, the general 
idea, another contributes certain improved de- 
tails and they thus work together, one suggest- 
ing and another improving, they must join as 
applicants or else the patent, when it issues, 
will be invalid. 

It must be understood, however, that there 
is a distinction between invention and skill. 

It is very unusual for an inventor who is not 
a mechanic to employ a skilled workman to 
carry his ideas into effect, but this does not 
make the mechanic an inventor. 'Not infre- 
quently, a skillful mechanic who is in the em- 
ploy of a great inventor and really does good 
work, will make the statement, which is given 
more or less credence, that he is the real in- 
ventor of such and such a thing. The inventor 
is not supposed to be capable of doing all things 
and he has an undoubted right to obtain the 



WOKKMAN AS INVENTOB. 35 

best skill obtainable to carry out his ideas ; 
that is to say, he will usually get a skilled 
draughtsman to give his ideas good mechanical 
shape, and his machine, if it be a machine, 
suitable design. He will also get good mechan- 
ics to make the parts, assemble them and make 
such changes as may suggest themselves to 
their practical minds, but notwithstanding the 
fact that the work may be very skillful, still, 
so long as the inventor brings the ideas to the 
workman, his invention is not thereby impaired 
and he has a perfect right to apply for and ob- 
tain a valid patent. 

If, however, the workman by his skill con- 
tributes to the real substance of the invention, 
as a whole or only as to part, and he carries 
into effect ideas not thought of by his employer, 
he must take out the patent himself in the one 
case or be joined as an applicant in the other. 
In this case not much skill is exercised, but in- 
vention. If the patent is to issue to one other 
than the inventor or to the inventor and some 
other person not an inventor, this must be ef- 
fected by a proper assignment. 

Persons employed to do skilled work have a 
right on their own time to carry into effect in- 
dependent inventions, but their ideas must be 
entirely independent from those of their em- 
ployers, and must be such improvements or 
must embrace such changes of mechanism as 



36 EMPLOYEE AND EMPLOYEE. 

would not suggest themselves to an ordinary- 
skilled mechanic. If the suggestions of the 
mechanic really constitute the complete ma- 
chine, and the one posing as the inventor merely 
suggests that he would like to do certain things, 
without specifying means by which the result 
is obtained, and the mechanic's ideas are 
shaped and made to accomplish the desired 
result, then the mechanic is the inventor. 

Employer and Employee.— One has the 
right to hire a person for the purpose of in- 
venting, but in such case the employee must 
sign any application and the patent to issue 
legally to the employer must be duly assigned 
to him. If the employee, while in the general 
employ of the employer, makes an invention on 
his own time and with his own materials, he 
has the legal right to the invention and his em- 
ployer cannot interfere with this invention. If, 
on the other hand, the employee has made an 
invention on his employer's time and has used 
his employer' s materials, in such case, the em- 
ployee is still the inventor, but the employer 
has an implied license, not transferable, which 
a court of competent jurisdiction will enforce 
and which will give the employer the right to 
the use of the invention in his business. 

This implied license, as above remarked, is 
not transferable and if the employer is a cor- 
poration, the license is extinguished by the dis- 



DECEASED INVENTOR. 37 

solution of the corporation. It will be seen, 
then, that the employee, in snch a case, has a 
perfect right to make any use of the invention 
he sees fit. He can sell it, lease it or do any 
act that any inventor and patent owner might 
do, but he cannot deprive his employer of the 
rights of a licensee. 

A Deceased Inventor.— If a person makes 
an invention and dies before making an appli- 
cation for a patent, or before the application is 
completed, the application can be made or 
prosecuted by the executor or administrator. 
If the deceased leaves no will, the right to 
loatent will go to his legal representatives. 

Patent Office Employees. — Persons in the 
employ of the Patent Office are barred from 
procuring patents while in such employment, 
although an employee may properly obtain a 
patent after he has left the Patent Office. 



CHAPTER YII. 

COI^rCEKN'ING PATENTABILITY. 

What Constitutes Invention.— The statute 
requires tliat in order to obtain a patent one 
must invent or discover something new and use- 
ful. The popular definition of the word inven- 
tion is the contriving or bringing out of some- 
thing which did not before exist ; but the statute 
requires more than this. 

Any fairiy resourceful mechanic, such as a 
machinist, a carpenter, or other artisan, is capa- 
ble of creating something which did not before 
exist, because the exigencies of his work re- 
quire it. One will scarcely find two building 
exactly alike. Two machinists will hardly do 
their work in the same way in bringing forth a 
well-known machine, and so on through the 
whole realm of mechanics. 

The workman who has had considerable ex- 
perience has sufficient skill to enable him to 
meet the ordinary requirements of his trade and 
to depart from existing models to a certain ex- 
tent, but he is not called upon to really create 



DOUBLE USE. 39 

or invent anything ; that is to say, he is not re- 
quired to use his inventive faculty to put to- 
gether things in such essentially new ways as 
to accomplish different results from those here- 
tofore obtained, or to combine things so that 
they will have functional differences from things 
already combined. The real distinction between 
invention and mere skill is that one is produced 
by original thought, while mere skill utilizes 
the discoveries of others, either by imitation or 
by employing good judgment in selecting and 
combining them, or in applying them to prac- 
tical results. 

If a person uses his inventive faculty, and 
really gives to the world or to the public some- 
thing new and useful, something in which the 
result obtained is real and tangible, he has done 
the public a service and has given a quid pro quo 
for the patent which will issue to him, but it is 
not the intent of the statute to offer a reward 
merely for skill, no matter how great its order. 

It frequently happens that a person will dis- 
cover a new use for an old thing, but this does 
not amount to invention, even though the result 
is very important, unless some change is re- 
quired to adapt the thing to the new use. This 
is what the Patent Office and courts term Double 
Use, and it follows that if a person merely dis- 
covers that a tool previously used for certain 
]>iirposes can be used to advantage for another 



40 ISSUED PATENTS. 

purpose lie has not made an invention, but sim- 
ply has enlarged the use of a well-known object. 
Moreover, the invention which he makes must 
Ibe one that is not obvious ; that is to say, that 
is not the result of mere skill. 

Issued patents are open to the public and any 
subsequent inventor is presumed to know oi 
their existence, even though they may cover 
subject-matter which has never been put in 
practical use. The issued patents may cover a 
machine which has never been made, still the 
fact that the drawings and description of the 
invention are on file at the Patent Office is a 
notice to any subsequent inventor, as if the 
machine had really been built. If, then, the 
new invention is one that would readily suggest 
itself to a person of ordinary skill, after a perusal 
and examination of existing patents, then the 
man cannot be held to have invented anything, 
but he has merely followed out obvious sugges- 
tions. 

The application of an old process to manu- 
facture an article to which it had never before 
been applied is not a patentable invention, nor 
does the application of old machinery to a new 
use involve invention. Aggregations of well- 
known things do not form inventions within the 
meaning of the statute. If stove hooks, socket 
wrenches and screw-drivers be old, as we know 
they are, then if one provides a single tool hav- 



AGGEEGATIONS. 41 

ing a liook at one end and the v/ ell-known form 
of a screw- driver of the ordinary kind at the 
other end and a wrench socket at some con- 
venient place on the handle, he has invented 
nothing, even though such combination never 
before existed. He has merely aggregated and 
collected a series of well-known things. This 
illustration serves well to show the difference 
between the combination of old parts to produce 
a new result and an aggregation. It will be 
noticed in the aggregation referred to that the 
stove hook serves simply as a stove hook, the 
screw-driver as a screw-driver, and the wrench 
as a wrench. J^either part cooperates with the 
other to accomplish any result, but in a legit- 
imate combination, the several x)arts of the com- 
bination coact to produce a certain definite and 
tangible result. 

It sometimes happens that one part may have 
an independent function, but it may also have 
a combined function with the other parts or 
elements of the combination. In such case a 
claim may be made for the part having the in- 
dependent function, and another claim for the 
part in combination with the other elements, 
with which it coacts. 

The examples given of what does not consti- 
tute invention will perhaps be as good a guide 
as any as to what does constitute invention. It 
is a general principle that mere changes in the 



42 DISCOVEBY AND INVENTION DEFINED. 

size or form of a thing or the number of articles 
composing a whole, or the degree of curvature 
or other dimension, as the shape of a dye, does 
not amount to invention. Neither does merely 
the substituting of one material for another. 
Supposing wooden door knobs to be common, 
it would not involve invention to substitute 
porcelain for wood, even though porcelain had 
never before been used for a door knob. 

If the porcelain were a new composition, then 
the inventor could cover it as a composition of 
matter without regard to the use to which the 
composition may be put. 

Discovery and Invention Defined.— 
Within the meaning of the Patent Law, a patent- 
able invention must possess a certain amount of 
utility, and must have some new feature, or pro- 
duce some new result, not obvious from any 
source of information, which makes the inven- 
tion new or else gives it a function or use not 
heretofore existing. 

A patentable discovery consists in first find- 
ing some principle or law of nature within the 
range of patentable subject-matter and reducing 
the same to practice. 

Tests of Patentable Novelty.— As pre- 
viously stated, probably one of the best tests of 
patentable novelty is this : Is there anything 
existing in the art which would naturally sug- 
gest to a skilled mechanic the alleged inven- 



TESTS OF PATENTABLE NOVELTY. 43 

tion ? If there is an essential change in func- 
tion, it would be held as generally true that 
there is invention. If the change of function is 
not essentially obvious, but the result achieved 
is important ; for example, if it is a machine 
and it makes a given article at a less cost or 
makes better articles or has essentially better 
results in any way, this fact of betterment is 
significant and it is almost conclusive evidence 
that the new matter involves invention. Or as 
one judge says: ''While it is true that the 
utility of a machine, instrument or contrivance, 
as shown by the generaL public demand for it 
when made known, is not conclusive evidence 
of novelty and invention, it is, nevertheless, 
highly persuasive in that direction, and in the 
absence of pretty conclusive evidence to the con- 
trary, will generally exercise controlling in- 
fluence." 

A decided advance in the art or in the result, 
even though accomplished by means quite sim- 
ilar to something heretofore existing, is ordi- 
narily good evidence of invention. 

Some Inventions not Patentable.— It is 
possible for one to use great ingenuity and in- 
vent something which has never before existed 
and which is useful and valuable, and yet may 
not come within the purview of the patent law. 
It is not unusual for a person to invent a certain 
advertising scheme which is an excellent thing, 



44 INVENTIONS NOT PATENTABLE. 

wMcli enables tlie advertiser to do better adver- 
tising than has been done before and yet the 
scheme is not patentable because it cannot be 
put in such tangible shape as to come under the 
head of a machine, a manufacture, an art or 
process, or a composition of matter. 

Many patents are taken out on advertising 
devices and some of them are very remunera- 
tive. But there is a difference between a de- 
vice and a scheme or method of advertising. 
The latter is not patentable. It is a mental 
process pure and simple. And so one may have 
a new business method or scheme which is ever 
so ingenious, which is valuable, but which can- 
not be put in such shape as to be patentable or 
does not come under the classification of patent- 
able subjects. Likewise, one may have a method 
of bookkeeping, which would render the work 
easier or more accurate, but this comes under 
the head of unpatentable and intangible things. 
If the invention is in a book and its peculiar 
arrangement, the book may be patented, but 
not the method. When one has evolved an idea 
along these lines all he can do is to get what he 
can out of it, before other people discover the 
scheme, but he cannot invoke the protection of 
the law. 

Inventions which are against public policy 
are not patentable, and while a hard and fast 
rule cannot be laid down as to what inventions 



INVENTIONS NOT PATENTABLE. 45 

are against public policy, still the inventor 
usually knows whether or not such is the case. 
It has been held that slot machines used merely 
for gambling purposes are inventions of this 
class and as such are not patentable. 



46 



CHAPTER YIII. 

PEIOR USE — PUBLIC USE— EXPERIMENTS. 

The statute provides tliat an invention to be 
patentable mnst not be known or used before 
applicant's invention or discovery thereof, or 
patented or described in any printed publica- 
tion in any country before his discovery or 
invention thereof, or more than two years prior 
to the application, or in public use or on sale in 
the United States for more than two years prior 
to the application for the patent, unless the 
same is proved to have been abandoned. The 
statute is not quoted, but only its substance 
given. It is provided further by statute that it 
is a good defense for an action of infringement 
of the patent to show that the patentee was not 
the original and first inventor or discoverer of 
the invention patented. Such prior use means 
use by another than the inventor, the knowl- 
edge and use occurring prior to the patentee's 
invention. 



PUBLIC USE. 47 

The use or knowledge of the invention abroad 
will not affect the<patent here, providing it had 
not been patented or described in a printed 
publication anywhere before its invention in 
this country. A foreign patent or publication 
to anticipate an application or invalidate a pat- 
ent must disclose substantially the same inven- 
tion, and must have been made public before 
the person who obtained the American patent 
made the invention. 

In attempting to take advantage of the de- 
fense of prior use, it very often happens that 
the defense will make a reference to some 
alleged prior invention containing the substance 
of the thing patented, when, as a matter of fact, 
the prior invention was in the nature of an ex- 
periment, and was abandoned. These aban- 
doned experiments are not of such a nature, 
within the meaning of the statute, as will 
invalidate a patent. The burden of proof, when 
prior use is set up, is on the defendant, and it 
takes strong proof to establish such a defense. 
If a prior patent has been issued for the same 
invention as that disclosed by a later patentee, 
even though the claims are not identical, the 
prior patent will invalidate the subsequent one 
unless the subsequent patentee can show that 
he was really the first inventor. 

Two Years' Public Us©.— The inventor may 
have made, used or sold his invention in the 



48 EXPEEIMENTS. 

United States to a great extent and for profit, 
but tMs will not debar him from obtaining a 
valid patent if sucli use has not been continued 
for more than two years prior to his application 
for patent, and he can honestly make oath to 
the fact that the invention has not been in pub- 
lic use or on sale in the United States for more 
than two years, even though he may have been 
at work on the invention for many years, so 
long as his work was of an experimental nature. 
If, however, the inventor has made or sold or 
used the article publicly for more than two 
years prior to his application, and this fact 
can be proved, he cannot obtain a valid patent, 
as a court will construe such long public uSe as 
an abandonment of the invention to the public. 
'Not can any inventor obtain a valid patent if 
he allows it to be used by persons generally, 
either with or without compensation. 

Experiments. — In connection with this sub- 
ject of public use and prior use is the matter of 
experiments. A public experiment is never 
public use within the meaning of the statute, 
so long as the experiment is bona fide and is 
for the purpose of testing the qualities of the 
invention. If the inventor uses the invention 
for profit, and not for experimental purposes, 
that is public use, though in some instances, if 
the profit was incidental, or it was necessary to 
result in profit to show the inventor how to 



EXPERIMENTS. 49 

perfect Ms invention, and was so used, such 
would not amount to public use. The experi- 
ment may have been used in public every day 
for several years, and have been known to hun- 
dreds of persons, and yet not be a public use. 



50 



BOOK II, 



CHAPTER I. 

THE APPLICATION. 

The matter of making tlie application for a 
patent is one of supreme importance to the in- 
ventor. It may be that he has an invention 
such as will never come to him again, that is 
of more importance than any other to him, and 
it is therefore absolutely necessary that all 
his rights be properly safeguarded. Moreover, 
if the invention is worthy of patenting at all, it 
is worthy of patenting well. 

Patent Office practice is intricate and pecu- 
liar and only those persons who are naturally 
qualified for this work and have added to their 
natural qualifications by study and experience 
are competent to attend to it. Many people 
who have not had experience in this line think 
that if they get a patent under the seal of the 
Patent Office this covers everything, and that 
a patent is a patent. Nothing could be farther 
from the truth. 



THE APPLICATION. 51 

A patent application embodies a petition, 
specification, drawings and oath ; tlie details 
of which will be hereinafter referred to. The 
patent specification is one of the most difficult 
instruments to draw properly and if an incom- 
petent or negligent person has charge of the 
application and prosecution of the case, he is 
likely to let the patent go to issue with claims 
which will not protect the inventor when rea- 
sonable diligence and skill would have given 
him adequate protection. Every examiner in 
the Patent Office is often exasperated to see the 
manner in which the inventor's interests are 
sacrificed. In an important invention it often 
happens that the subject-matter is essentially 
new, but that the claims have been drawn so 
that in terms they are not allowable, whereas 
by proper amendment they would be so. 

In such a case the examiner must reject the 
claims. An incompetent or unscrupulous at- 
torney who is anxious to get a quick allowance 
will sometimes cancel a lot of rejected claims 
and permit the patent to go to issue upon claims 
which are wholly insufficient. The examiner at 
the Patent Office is not at fault and is practi- 
cally powerless to help the inventor. The pat- 
entee may probably know nothing of the 
matter until in the exploitation of his invention 
he attempts to sell it or to get money to prop- 
erly develop and to market it. The prospective 



52 ATTORNEYS. 

investor, being a man of tlie world and having 
experience, may be pleased with, the invention, 
but he will almost invariably refer the matter 
to his counsel to see if the patent is valid and 
the invention properly covered by the claims. 
His counsel will, on investigation, see that the 
patent is wholly inadequate and must so report ; 
consequently the patentee is unable to interest 
capital and sees a fortune slip away from him, 
and may have the further mortification of 
seeing the same person whom he has tried to 
interest making a fortune out of an invention 
so similar to his that it would have been a pal- 
pable infringement if his patent had been prop- 
erly obtained. 

Business men usually recognize the rule that 
cheap help is the most expensive ; that is to 
say, it is not profitable to put a professional 
man to digging a ditch, but it is profitable to 
employ the best ditch -digger if a ditch is to be 
dug and pay him reasonably, rather than have 
a poorer man for less money. Good counsel is 
always the cheapest in the end and the differ- 
ence in cost is not so very great. The majority 
of patent agents who advertise widely and work 
cheaply are either incom|)etent or else work for 
such small fees that they cannot afford to do 
proper work. 

The Patent Office advises an applicant unless 
familiar with such matters ' ' to employ a com- 



SOME IMPORTANT STATUTES. 53 

petent attorney as the value of patents depends 
largely npon the skillful preparation of the 
specification and claims." There is no excuse 
for an inventor if he suffers through poor legal 
advice and skill. While there are, no doubt, 
many incompetent attorneys in the country, 
still there are in most large cities competent and 
reliable attorneys who work for reasonable fees 
and who are thoroughly competent to take care 
of their clients' interests. The inventor will 
have to pay such person, perhaps, from ten to 
twenty-five dollars more for the prosecution of 
an ordinary Patent Office case, but by the ex- 
penditure of this small additional sum, he may 
save himself a fortune in the end. It is of the 
utmost importance for any person, inventor or 
otherwise, having any patent work of any na- 
ture whatsoever to employ good counsel. 

Some of the most important statutes relating 
to patents are in their essential parts as follows : 

Sections' 4884. — Every patent shall contain a 
short title or description of the invention or 
discovery, correctly indicating its nature and 
design, and a grant to the patentee, his heirs or 
assigns, for a term of seventeen years, of the ex- 
clusive right to make, use and vend the inven- 
tion or discovery throughout the United States 
and the Territories thereof, referring to the 
specification for the particulars thereof. A 
copy of the specification and drawings shall 



54 SOME IMrOETANT STATUTES. 

be annexed to the patent and be a part 
thereof. 

Section 4886. — Any person who has invented 
or discovered any new and useful art, machine, 
manufacture or composition of matter, or any 
new and useful improvements thereof, not 
known or used by others in this country before 
his invention or discovery thereof, and not pat- 
ented or described in any printed publication 
in this or any foreign country, before his inven- 
tion or discovery thereof, or more than two 
years prior to his application, and not in pub- 
lic use or on sale in this country for more than 
two years prior to his application, unless the 
same is proved to have been abandoned, may, 
upon payment of the fees required by law, and 
other due proceeding had, obtain a patent 
therefor. 

Sectioi^ 4887.-1^0 person otherwise entitled 
thereto shall be debarred from receiving a pat- 
ent for his invention or discovery, nor shall 
any patent be declared invalid, by reason of its 
having been first patented or caused to be pat- 
ented by the inventor or his legal representa- 
tives or assigns in a foreign country, unless the 
application for said foreign patent w^as filed 
more than seven months prior to the filing of 
the application in this country, in which case 
no patent shall be granted in this country. 

Section 4889.— When the nature of the case 



SOME IMPOETANT STATUTES. 55 

admits of drawings, the axDplicant sliall furnish 
one copy, signed by the inventor or his attor- 
ney in fact, and attested by two witnesses, 
which shall be filed in the Patent Office ; and a 
copy of the drawing, to be furnished to the 
Patent Office, shall be attached to the patent 
as a part of the specification. 

Sectioit 4890. — When the invention or dis- 
covery is of a composition of matter, the appli- 
cant, if required by the Commissioner, shall 
furnish specimens of ingredients and of the 
composition, sufficient in quantity for the pur- 
pose of experiment. 

Section 4892.— The applicant shall make oath 
that he does verily believe himself to be the 
original and first inventor or discoverer of the 
art, machine, manufacture, composition or im- 
provement for which he solicits a patent ; that 
he does not know and does not believe that the 
same was ever before known or used ; and shall 
state of what country he is a citizen. Such 
oath may be made before any person within the 
United States authorized by law to administer 
oaths, or when the applicant resides in a foreign 
country, before any minister, charge d'affaires, 
consul, commercial agent, holding commission 
under the Government of the United States, or 
before any notary public of the foreign country 
in which the applicant may be. 

Section 489B.— On the filing of any such ap- 



56 COMPLETE APPLICATION. 

plication and tlie payment of the fees required 
by law, the Commissioner of Patents shall cause 
an examination to be made of the alleged new 
invention or discovery ; and if on such exam- 
ination it shall appear that the claimant is justly 
entitled to a patent under the law, and that the 
same is sufficiently useful and important, the 
Commissioner shall issue a patent therefor. 

Section 4894. — All applications for patents 
shall be completed and prepared for examina- 
tion within one year after the filing of the appli- 
cation, and in default thereof, or upon failure 
of the applicant to prosecute the same within 
one year after any action therein, of which 
notice shall have been given to the applicant, 
they shall be regarded as abandoned by the 
parties thereto, unless it be shown to the satis- 
faction of the Commissioner of Patents that 
such delay was unavoidable. 

As will be seen by reference to the statutes, 
it is necessary in a complete application to have 
drawings of the invention where the latter ad- 
mits of drawings, a petition, a specification 
which will describe the invention so accurately 
that it can be carried into effect by those skilled 
in the art from the specification, and drawings 
if any, and an oath. It will be assumed that 
the inventor uses good judgment and employs 
good counsel to prepare and prosecute his case. 
If he can see his attorney, the latter will get all 



FILING OF APPLICATION. 57 

the information lie requires, but whether he 
sees him or not, and particularly if the matter 
is attended to by correspondence, the inventor 
should be careful to conceal nothing whatever 
from his attorney, but to go into the utmost 
detail and specify every matter which really 
concerns the invention. That is to say, it is not 
necessary for him to refer in great detail to 
immaterial matters, but let him thoroughly 
describe his invention, and particularly the 
advantages of the new construction. Let him 
discriminate between the new and the old, and 
point out with great particularity all the differ- 
ences between the old and the new, so far as he 
can, as this materially assists in properly pre- 
paring the application papers. 

The specifications and claims, by their scope, 
render the patent broad and sufficient, or nar- 
row and incomplete. A good attorney will 
bring out in the specification all the essential 
matters, describe the new functions accurately 
and well, and so lead up to claims which he will 
draw in such a way as to thoroughly cover the 
invention. The attorney will prepare the neces- 
sary petition and oath, and after the papers are 
executed will file them in the Patent Office, pay- 
ing the first Government fee of fifteen dollars. 

Piling of Application.— The application is 
examined in its order of filing — that is to say, 
in the order in which it is received in relation to 



58 EXAMINATION OF APPLICATION. 

other applications. The applications are filed 
in certain divisions of the Patent Office accord- 
ing to the nature of the invention, and they are 
taken np by the examiner in charge of the divi- 
sion, in their regular order, and this order is 
not departed from except in the following in- 
stances : 

(1) Applications wherein the inventions are 
deemed of peculiar importance to some branch 
of the public service, and when for that reason 
the head of some department of the Govern- 
ment requests immediate action and the Com- 
missioner so orders ; but in such case it shall 
be the duty of such head of a department to be 
represented before the Commissioner in order 
to prevent the improper issue of the patent. 

(2) Applications for reissues. 

(3) Applications which appear to interfere 
with other applications previously considered, 
and found to be allowable, or which it is de- 
manded shall be placed in interference with an 
unexpired patent or patents. 

Examination of Application.— When the 
case is reached by the examiner, he goes care- 
fully over the specification, drawings and other 
papers, and if there are any technical objec- 
tions, such as typographical errors, irregular 
claims or insufficient or improper drawings, he 
calls the attention of the applicant or his attor- 
ney to this matter, and usually at the same 



KEJECTION OF APPLICATION. 59 

time tie passes on the merits of the claims. In 
construing the claims and either allowing or 
rejecting them, he considers the state of the art 
to which the application appertains and com- 
pares the case with existing United States 
patents in the art, goes over such foreign pat- 
ents as are obtainable, and even examines pub- 
lic documents, catalogues and technical books, 
because it must be borne in mind that the 
invention must be new in order for the patent 
to issue, and if claims pass to issue which 
can be construed to cover existing matter they 
are invalid. After making such an examina- 
tion the Patent Office makes a report to the 
attorney of record, if there is one, and allows 
such claims as are not found objectionable and 
rejects the others. 

It is here that the skillful attorney is of 
especial use to the inventor. The examiners at 
the Patent Office are, as a rule, conscientious, 
careful and well skilled in their art, but they 
are human, and therefore not infallible. 'Not 
infrequently they will reject a claim which is 
really allowable, and if the attorney is suffi- 
ciently skillful and discriminating, he can 
usually present the case to the examiner so 
that he will see that the claim or claims may 
be allowed, and the other claims the attorney 
will cancel or amend, as the necessities of the 
case require, until no claims are left in dispute 



60 ISSUE OF PATENT. 

but all remaining are allowable, after which the 
official notice of allowance is issued. 

The applicant then has six months in which 
to pay the final Government fee of twenty dol- 
lars, and when this is paid the patent issues to 
him. The fee can be paid at once or at any 
time during the six months. If the attorney 
and the examiner cannot agree as to the allow- 
ability of the claims, the applicant can appeal. 
It sometimes happens that two or more appli- 
cations for the same subject-matter, but by 
different inventors, will be pending in the Pat- 
ent Office at the same time, or that a pending 
application will be rejected on a patent issued 
within two years of the filing of the applica- 
tion, and that the applicant can show that he 
has made his invention before the filing of the 
prior patent. In either of these cases the par- 
ties are declared in interference. This matter 
of appeals and interferences will be considered 
in separate chapters. 



61 



CHxiPTER II. 

APPEALS. 

The rules of practice relating to the prosecu- 
tion of patent applications and of appeals in 
patent cases are extremely liberal to the in- 
ventor and would-be patentee and give him the 
opportunity to obtain his rights without undue 
expense. The claims are not left to be decided 
by the individual who, though ever so honest, 
might do the inventor great injustice. But if 
the applicant for a patent is dissatisfied with 
the ruling of an examiner in the Patent Office 
who rejects a claim or claims, he has the right 
to appeal from the decision of the primary ex- 
aminer to the Board of Examiners-in-Chief ; 
from the Examiners-in-Chief to the Commis- 
sioner of Patents, and from the Commissioner 
of Patents to the Court of Appeals for the Dis- 
trict of Columbia, so that there is ample means 
for him to obtain his deserts. 

The practice of the primary examiner in mak- 
ing the examination and passing on the patent- 
ability of claims has been already gone into in 
the preceding chapter, but it sometimes happens 



62 APPEALS. 

that the examiner and the applicant or his at- 
torney cannot agree on claims which are thought 
to be allowable. In that case the applicant has 
a right, as above stated, to appeal to the Board 
of Examiners-in-Chief . This Board is composed 
of three skilled persons, competent to pass on 
the scope and patentability of claims, and to 
them the appeal is taken in the first instance. 
For such an appeal there is a Government fee 
of ten dollars, but if there are questions which 
do not involve the patentability of the claim or 
affect the merits of the invention, for instance, 
as to the question of division or whether an 
amendment shall be entered and considered, he 
can petition the Commissioner without fee, and 
have the question considered and decided by 
him. 

Before an appeal can be had to the Board of 
Examiners-in-Chief, the claim must have been 
twice presented and twice rejected. The hear- 
ing before the Board of Examiners-in-Chief is 
substantially the same as a hearing in court. 
The appellant files his reasons for appeal and 
usually a brief of the authorities and arguments 
on which he relies to maintain his appeal, and 
if he desires he can have an oral hearing before 
the Board. If the decision is adverse to him he 
can appeal to the Commissioner in person upon 
the payment of the fee of twenty dollars, and 
the Commissioner reviews the decision of the 



APPEALS. 63 

Board and can either affirm or reverse it and, 
as before remarked, if lie desires the applicant 
may appeal from the decision of the Commis- 
sioner to the Court of Appeals for the District 
of Columbia. In each case of appeal the ap- 
pellant must state his reasons for the appeal ; 
state wherein the person or persons making the 
decision appealed from erred, and should file a 
brief setting forth the grounds of appeal, author- 
ities on which he relies, etc. 



64 



CHAPTER III. 

INTERFEEElSrCES. 

An interference is a proceeding instituted for 
tlie purpose of determining the question of 
priority of invention between two or more par- 
ties claiming substantially the same patentable 
invention. The mere fact that one of the par- 
ties has already obtained a patent will not pre- 
vent an interference, for, although the Commis- 
sioner has no power to cancel a patent, he may 
grant another patent for the same invention to 
the person who proves to be the prior inventor. 
Interference according to practice in the Patent 
Office, will be declared in the following cases 
when all parties claim substantially the same 
patentable invention : 

(1) Between two or more original applications 
containing conflicting claims. 

(2) Between the original application and an 
unexpired patent containing conflicting claims, 
when the applicant, having been rejected on the 
patent, shall file an affidavit that he made the 
invention before the patentee's application was 
filed. 



INTEEFERENCES. 65 

(3) Between an original application and an 
application for the reissue of a patent granted 
during the pendency of such original applica- 
tion. 

(4) Between the original application and a 
reissue application, when the original applicant 
shall file an affidavit showing that he made the 
invention before the patentee's original applica- 
tion was filed. 

(5) Between two or more applications for the 
reissue of patents granted on applications pend- 
ing at the same time. 

(6) Between two or more applications for the 
reissue of patents granted on applications not 
pending at the same time, when the applicant 
for reissue of the later patent shall file an 
affidavit showing that he made the invention 
before the application was filled on which the 
earlier patent was granted. 

(7) Between a reissue application and an un- 
expired patent, if the original applications were 
pending at the same time, and the reissue ap- 
plicant shall file an affidavit showing that he 
made the invention before the original applica- 
tion of the other patentee was filed. 

(8) Between an application for reissue of a 
later unexpired patent and an earlier unexpired 
patent, granted before the original application 
of the later patent was filed if the reissue ap- 
plicant shall file an affidavit showing that he 



66 DECLAEATION OP INTERFERENCE. 

made the invention before ttie original applica- 
tion for the earlier patent was filed. 

(9) An interference will not be declared be- 
tween an original application filed subsequently 
to December 31, 1897, and a patent issued more 
than two years prior to the date of filing such 
application, or an application for a reissue of 
such patent. 

Before the declaration of interference all pre- 
liminary questions must be settled by the pri- 
mary examiner and the issue must be clearly 
defined. The invention which is to form the 
subject of the controversy must be decided to 
be patentable and the claims of the respective 
parties must be put in such condition that they 
will not require alteration after the interference 
shall have been finally decided unless the testi- 
mony adduced on the trial shall necessitate or 
justify it. It is not proposed here to go into 
the technicalities of an interference proceeding. 
Such matters are uninteresting reading for one 
who is not specially interested in an interfer- 
ence case and moreover the subject is compre- 
hensive enough to require a volume to treat it 
with accuracy and detail. Further, no sane 
person, unless he be a patent attorney or 
familiar with interference proceedings, would 
think of prosecuting an interference case him- 
self, but would get some competent lawyer to 
represent him. The practice in interference 



IMPOETANCE OF EAELY APPLICATION. 67 

proceedings is intricate and requires the services 
of a lawyer of good skill and experience. The 
proceedings are in the nature of a contest in 
equity and the parties to the interference are 
required under proper rules to take testimony 
to prove when they conceived the invention, 
when they made drawings, if any, when they 
made a model, if any, what they have done in 
the way of making the complete invention and 
matters tending to show when the invention was 
conceived and completed, and generally such 
matters as will tend to prove who is the first 
inventor, which is the real question in issue. 

Importance of an Early Application.— 
If several applications are pending for the same 
subject-matter at the same time, the parties will 
be in interference, but the one who first files his 
application is the senior party, so called, and it 
will take strong evidence on the part of others 
to overcome the probability that he, the first 
applicant, is the first inventor. Moreover, the 
one who first reduces an invention to practice 
takes the important step and so important in 
fact that if he has conceived the invention sub- 
sequent to the conception of another, but is the 
first to reduce the invention to practice and the 
other neglects unreasonably to reduce to prac- 
tice, then the proceedings will be decided in 
favor of the one who has used diligence in put- 
ting his invention into practical shape. Now it 



68 EVIDENCE OF INVENTION. 

is held tliat a complete application for a patent 
is a constructive reduction to practice, for, to 
make a complete application, drawings and 
a specification are required, which enable an 
operative machine or device to be made, or a 
process to be operatively carried out, or a com- 
position to be put together in practical shape. 
The necessity of an early filing of the applica- 
tion is therefore apparent. Fortunately, inter- 
ference proceedings are not so very common ; 
on the other hand they are not unusual, and 
therefore it is decidedly to the interest of in- 
ventors, for this and other reasons, to make an 
application for a patent as soon as they can get 
the matter into proper shape for such applica- 
tion. It is believed that interference cases will 
be rather less common than formerly because, 
owing to a recent decision, the claims of dif- 
ferent parties must be substantially alike in 
order to constitute an interference. 

Evidence of Invention.— No one can tell 
whether or not he may be involved in an inter- 
ference proceeding when he files his application 
for a patent, and therefore a prudent inventor 
will preserve evidence of his invention. The 
importance of making an early application by 
the inventor has already been shown, but he 
should also be able to furnish good evidence of 
his invention, outside of his application. When 
he conceives the invention, it is well for him to 



REDUCTION TO PRACTICE. 69 

make a sketch of it if possible, sign and date 
the same, and have competent witnesses to the 
sketch. It is also well to make a complete work- 
ing invention at as early a date as possible as he 
has then effected what is known as '' reduction 
to practice." This is an important matter in 
case he gets into interference proceedings, for 
one may have an early conception of an inven- 
tion and take no further steps to put it in prac- 
tice and make it of value to the public. A later 
inventor may at once proceed to reduce his in- 
vention to practice ; to build a machine, if it be 
a machine, or to complete the invention, what- 
ever its character, and in such case the inter- 
ference proceedings will, other things being 
equal, usually be decided in favor of the one 
who has used diligence in perfecting his inven- 
tion even though he may not be the first to con- 
ceive. These matters of conception, reduction 
to practice, diligence, laches, etc., are each of 
great importance in interference proceedings 
and there are so many questions which arise 
and concern the relative importance of any one 
of them that no general statement can be made 
as to which is the most important, for the cir- 
cumstances in each case affect this matter. 

It can be laid down as a good rule, however, 
that the inventor to protect his interest should 
always first reduce the conception to tangible 
form by a drawing or description as soon as he 



70 HEARING. 

can do so and have the matter witnessed. 
Second, that he should, as soon as possible, 
carry his conception into effect by building the 
structure, if it be a structure, or completing the 
invention, whatever its nature, and, third and 
most important, he should make his applica- 
tion for his patent just as soon as he can get the 
subject-matter for the application and can de- 
cide that the matter is worth patenting. If the 
testimony has been taken on both sides in an 
interference proceeding, the records of the testi- 
mony and the briefs of counsel are laid in the 
proper manner before the examiner of interfer- 
ences and the case is usually argued by counsel, 
after which the examiner renders his decision 
on the case. The question of appeal is prac- 
tically the same as already considered under 
appeals from the primary examiner, that is to 
say, either party can appeal from the examiner 
of interferences to the Board of Examiners-in- 
Chief, from the Board to the Commissioner in 
person, and from the Commissioner to the Court 
of Appeals for the District of Columbia. 



71 



CHAPTER lY. 

DISCLAIMERS AND REISSUES. 

A disclaimer is an amendment to a patent 
after issue, wMch disclaims some definite and 
specific part of the patent. 

The object of a disclaimer is to avoid having 
a patent declared invalid in case of litigation, 
by reason of claiming more than the owner is 
entitled to as justly and truly his own, unless 
he has preserved the right to disclaim the sur- 
plus. This right may be lost by unreasonable 
neglect or delay to file a disclaimer in the 
Patent Office. 

As stated in another chapter, each claim 
stands or falls by itself. In case of litigation a 
favorable decision will be rendered if only one 
claim is infringed. It is usual before bringing 
a suit to have an examination made into the 
validity of the patent, and in case counsel finds 
that one or more claims are probably invalid 
and he does not care to have them passed upon, 
he does not put these questionable claims in 
issue. This makes it unnecessary to file a dis- 
claimer as to those claims, and principally on 



72 DISCLAIMERS. 

this account disclaimers are not very often 
used. 

The sections of the statute relating to dis- 
claimers are as follows : 

Sectioi^ 4917. — Whenever, through inadvert- 
ence, accident, or mistake, and without any- 
fraudulent or deceptive intention, a patentee 
has claimed more than that of which he was 
the original or first inventor or discoverer, his 
patent shall be valid for all that part which is 
truly and justly his own, provided the same is 
a material or substantial part of the thing 
patented ; and any such patentee, his heirs or 
assigns, whether of the whole or any sectional 
interest therein, may, on payment of the fee 
($10.00) required by law, make disclaimer of 
such parts of the thing patented as he shall not 
choose to claim or to hold by virtue of the 
patent or assignment, stating therein the extent 
of his interest in such patent. Such disclaimer 
shall be in writing, attested by one or more 
witnesses, and recorded in the Patent Office ; 
and it shall thereafter be considered as part of 
the original specification to the extent of the 
interest possessed by the claimant and by those 
claiming under him after the record thereof. 
But no such disclaimer shall affect any action 
pending at the time of its being filed, except so 
far as may relate to the question of unreason- 
able neglect or delay in filing it. 



DISCLAIMEKS. 73 

Section 4922. — Whenever, througli inadvert- 
ence, accident, or mistake, and without any 
willful default or intent to defraud or mislead 
the public, a patentee has, in his specification, 
claimed to be the original and first inventor or 
discoverer of any material or substantial part 
of the thing patented, of which he was not the 
original and first inventor or discoverer, every 
such patentee, his executors, administrators 
and assigns, whether of the whole or any sec- 
tional interest in the patent, may maintain a 
suit at law or in equity, for the infringement of 
any part thereof, which was bona fide his own, 
if it is a material and substantial part of the 
thing patented, and definitely distinguishable 
from the parts claimed without right, notwith- 
standing the specifications may embrace more 
than that of which the patentee was the first 
inventor or discoverer. But in every such case 
in which a judgment or decree shall be rendered 
for the plaintiff, no costs shall be recovered 
unless the proper disclaimer has been entered 
at the Patent Office before the commencement 
of the suit. But no patentee shall be entitled 
to the benefits of this section if he has unrear 
sonably neglected or delayed to enter a dis- 
claimer. 

These sections should be construed together, 
and the kind of disclaimer referred to differs 
from those which are embodied in the original 



74 KEISSUES. 

or in reissue applications, as originally filed or 
subsequently amended, in which the disclaim- 
ant does not claim title to matter shown and 
described . It also differs from those made to 
avoid the continuance of an interference. These 
latter disclaimers must be signed by the appli- 
cant in person and must be duly witnessed, 
and require no fee. 

It will be seen from the sections quoted that 
any owner of the patent or of any rights under 
the same may disclaim, but the disclaimer affects 
only the interests possessed ' ' by the claimant 
(the one making the disclaimer) and by those 
claiming under him after the record thereof." 

It appears, therefore, that if there are differ- 
ent owners of a patent, one may disclaim, thus 
affecting the rights of those claiming under 
him, while the others may have a different 
right in the patent because one party may 
think a disclaimer should be recorded while 
another may take a different view of the mat- 
ter. A disclaimer should only be filed under 
the advice of competent counsel, and if filed at 
all it must be filed without unreasonable delay. 

Reissues, — The reason for filing a reissue is to 
correct a patent which is inoperative or invalid. 
This occurs when the specification is defective 
or insufficient, or the patentee claims as his own 
invention or discovery more than he had a 
right to claim as new. If the error has arisen 



REISSUES. 75 

by inadvertence, accident or mistake, and with- 
out any fraudulent or deceptive intention, and 
the applicant otherwise complies with the law, 
a new patent will be issued to him. 

Usually reissues are applied for merely to 
broaden the invention. It rarely occurs that a 
court will sustain a reissued patent where the 
invention is broadened, particularly when 
there has been unreasonable delay in making 
the application. If there has been a delay of 
two years or more this would, unless in excep- 
tional cases, be held to be unreasonable. In 
fact, much less time than this has been held to 
be unreasonable, particularly where others have 
entered the field who would not have infringed 
the claims of the original patent. 

In view of the fact that a reissued patent with 
broadened claims will generally be held to be 
invalid, it is of the utmost importance that the 
application for a patent in the first instance 
should be carefully prepared and the applica- 
tion skillfully prosecuted while pending in the 
Patent Office by those competent to attend to 
such matters. Otherwise, the inventor may 
find himself in possession of a patent which 
does not protect his invention and which is of 
little or no commercial value. 

The principal statute relative to reissues is as 
follows : 

Section 4916. — Whenever any patent is inop- 



76 REISSUES. 

erative or invalid, by reason of a defective or 
insufficient specification, or by reason of the 
patentee claiming as his own invention or dis- 
covery more than he had a right to claim as 
new, if the error has arisen by inadvertence, 
accident or mistake, and without any fraudu- 
lent or deceptive intention, the Commissioner 
shall, on the surrender of such patent and the 
payment of the duty required by law, cause a 
new patent for the same invention, and in 
accordance with the corrected specification, to 
be issued to the patentee, or, in case of his 
death or of an assignment of the whole or any 
undivided part of the original patent, then to 
his executors, administrators, or assigns, for 
the unexpired part of the term of the original 
patent. Such surrender shall take effect upon 
the issue of the amended patent. The Commis- 
sioner may, in his discretion, cause several 
patents to be issued for distinct and separate 
parts of the thing patented upon demand 
of the applicant, and upon payment of the 
required fee for a reissue for each of such reis- 
sued letters patent. The specifications and 
claim in every such case shall be subject to 
revision and restriction in the same manner as 
original applications are. Every patent so reis- 
sued, together with the corrected specifications, 
shall have the same effect and operation in law, 
on the trial of all actions for causes thereafter 



EEISSUES. 77 

arising, as if tlie same had been originally filed 
in such corrected form ; but no new matter 
shall be introduced into the specification, nor 
in case of a machine patent shall the model or 
drawings be amended, except each by the 
other; but when there is neither model nor 
drawing, amendments may be made upon proof 
satisfactory to the Commissioner that such new 
matter or amendment was a part of the original 
invention, and was omitted from the specifica- 
tion by inadvertence, accident or mistake, as 
aforesaid. 

The Patent Office requires when filing an 
application for a reissue that the applicant, 
besides the usual petition and oath, must file a 
statement on oath as follows : 

(1) That applicant verily believes the original 
patent to be inoperative or invalid, and the 
reason why. 

(2) When it is claimed that such patent is so 
inoperative or invalid " by reason of a defective 
or insufficient specification," particularly speci- 
fying such defects or insufficiencies. 

(3) When it is claimed that such patent is in- 
operative or invalid " by reason of the patentee 
claiming as his own invention or discovery 
more than he had a right to claim as new,' ' dis- 
tinctly specifying the part or parts so alleged 
to have been improperly claimed as new. 

(4) Particularly specifying the errors which 



78 EEISSUES. 

it is claimed constitute the inadvertence, acci- 
dent or mistake relied upon, and how they 
arose or occurred. 

(5) That said errors arose *' without any- 
fraudulent or deceptive intention " on the part 
of the applicant. 

The government fee for reissue applications 
is thirty (30) dollars. Owing to the work in- 
volved to prosecute a reissue patent properly, 
even under the most favorable circumstances, it 
is necessary for the attorney usually to charge 
more for his work than for the preparation of 
original applications. 



79 



CHAPTER Y. 

RFEITED, EEVIVED AND 
EEXEWED APPLICATIONS. 

An abandoned application is one which has 
not been completed and prepared for examina- 
tion within one year after the filing of the peti- 
tion, or which the applicant has failed to prose- 
cute within one year after any action therein of 
which notice has been duly given, or which the 
applicant has expressly abandoned by filing in 
the Office a written declaration of abandonment 
signed by himself and assignee, if any, identi- 
fying his invention by title of invention, serial 
number and date of filing. Prosecution of the 
application to save it from abandonment must 
include such proper action as the condition of 
the case may require. The mere fact of offer- 
ing an amendment will not save the case from 
abandonment, but the amendment must be in 
the nature of a proper response to the last ofii- 
cial action on the case. 

Revival of Abandoned Cases.— Before 
the application abandoned by failure to com- 
plete or prosecute can be revived as a pending 



80 FOEFEITED APPLICATION. 

application it must be sliown to the satisfaction 
of the Commissioner that the delay in the pros- 
ecution of the same was unavoidable. If a new 
application is filed in place of the abandoned 
or rejected one, a new specification, oath, draw- 
ing and fee will be required, but the old model, 
if any, and if suitable, may be used. 

Forfeited Application.— A forfeited ap- 
plication is one on which a patent has been 
withheld for failure to pay the final fee within 
the prescribed time. This time, it will be re- 
membered, is six months after the allowance of 
the application. That is, the final fee of twenty 
dollars must be paid at some time between the 
date of allowance and six months from said 
date. When the patent has been withheld by 
reason of the non-payment of the final fee, any 
person, whether inventor or assignee, who has 
an interest in the invention for which such pat- 
ent was ordered to issue, may file a renewal of 
the application for the same invention, but such 
second application must be made within two 
years after the allowance of the original appli- 
cation. In such renewal the oath, petition, 
specification, drawing and model, if any, of the 
original application, may be used for the second 
application, but a new fee will be required. 
The second application will be regarded for all 
purposes as a continuation of the original one, 
but must bear date from the time of renewal, 



FORFEITED APPLICATION. 81 

and be subject to examination like the original 
application. Copies of the files in forfeited and 
abandoned applications may be furnished when 
ordered by the Commissioner of Patents. The 
requests for such co^Dies must be presented in 
the form of a petition, properly verified, as to 
all matters not appearing of record in the Pat- 
ent Office. 



82 



CHAPTEE YI. 

liSTFEINGEMENT— INFRINGIIsO INVENTIONS AND 
ACTS — EEMEDIES FOR INFRINGEMENT. 

The scope of tlie book does not include in de- 
tail such subjects as infriBgements and interfer- 
ences, xDarticularly the former, because the sub- 
ject is so large, the questions arising within it so 
many, and the nature of the questions requires 
such discrimination and so many citations that it 
is impossible in the present work to go into the 
matter except in a very general way. The 
main purpose is to tell what to do with inven- 
tions and how to make money out of them. 
But even in treating of this subject, matters 
relating to the prosecution of patent applica- 
tions and questions of infringement must be, in 
a measure considered, to make the work com- 
plete and to make such matters fairly familiar 
to the inventor. 

Definition of Infringement— The grant 
and issue of a patent gives to the patentee 
the exclusive right to make, use and vend 
the patented invention throughout the United 
States and the territories thereof, during the 



INFRINGEMENT. 83 

period for whicli the patent has been granted. 
The right is exclusive, and is invaded by one 
who manufactures, by one who uses only, or 
by one who sells, presuming, of course, that 
such person is not authorized by the patentee. 

This matter of infringement is apt to be the 
chief injury against which the inventor can 
complain, although there are other wrongs 
against the patentee which cannot be gone into 
to any extent. 

To constitute an infringement, the infringing 
thing must be the same, or substantially the 
same, as that covered by the patent. It makes 
no difference what the patentee may think he 
has. The patent, as a matter of fact, covers 
only the patentable subject-matter which is 
specifically claimed, and which is capable of 
infringement by an invasion of the inventor's 
rights in the invention. It follows, then, that 
there cannot be an infringement, unless the 
patent clearly discloses the invention — that is, 
discloses it to such an extent that it may be 
practiced by one skilled in the art from a study 
of the specifications, and drawings if any, with- 
out regard to any other help except his skill, 
which need not be above the average. 

The invention must be new, and, to a certain 
extent, useful, to render the patent valid. But 
supposing the patent to be valid, the next ques- 
tion is, does the alleged infringement come 



84 INFEINGEMENT. 

within the scope of the claims of the patent ? 
It is not necessary that it infringe all the claims, 
but if it infringes any one claim, it is an in- 
fringement within the meaning of the law. A 
patent may have a great many claims, and a 
majority of them may have no bearing on the 
infringing article, but if a single one would 
include in its terms the thing alleged to in- 
fringe, then the court will hold that the pat- 
entee' s rights have been infringed. 

Each claim is independent, and must stand 
or fall of itself. It is read and construed in 
connection with the descriptive part of the 
specification, but it is not affected by the other 
claims, although it may sometimes be inferred 
that a claim should not have a given meaning 
or construction because another claim in the 
same patent has a more clearly expressed 
meaning that is not consistent with the pro- 
posed construction of the claim. It must be 
borne in mind that a patent does not cover a 
result, but only the means of producing this 
result, whether this means be in the nature of a 
process or a mechanism. 

The first question, then, which arises con- 
cerning an infringement implies means substan- 
tially identical with those of the patent. The 
two things— that is, the patented invention and 
the alleged infringement, may be essentially 
different in many ways, bat the alleged in- 



EQUIVALENTS. 85 

fringement has a function or mode of operation 
or combination of elements which are substan- 
tially like those in the patent, so that if the 
terms of the claim would include the said means, 
then an infringement exists. 

The infringing article may not even have the 
same elements, but may have well-known 
equivalents. Equivalent, within the meaning 
of the patent law, is anything known to exist 
at the time of the granting of the patent which 
can be substituted for a given part or parts in 
the patent and produce the same effect — that is, 
an element or part that without invention can 
take the place of another element embodied in 
the claim of the patent. Well-known examples 
of equivalents are a spring for a clock move- 
ment instead of a weight, a gearing for driving 
mechanism as a substitute for belts and pul- 
leys or a friction wheel. This similarity of 
means being established, then, the variations in 
shape, size, capacity and materials are imma- 
terial. 

It has been said that the identity of the 
alleged infringement with the patented inven- 
tion is not to be determined by its condition 
merely at the time of its original construction 
— that is to say, the infringing thing may not 
closely resemble the patented invention, but 
may, when put to use, develop features that 
perform a function of the patented invention 



86 INFEINGEMENT BY CONSPIRATOES. 

by the same mode of operation. If it performs 
this result, then it will be held to be an infringe- 
ment. As heretofore mentioned, the patent 
grants the exclusive right of making, using and 
selling the patented invention, these words be- 
ing intended to cover every method by which 
the invention can be made valuable by an 
infringer, and any person who participates in 
any wrongful appropriation of the invention 
becomes an infringer. 

Not only is it true that the maker, user or 
seller is an infringer of the patented invention, 
but if different parties conspire to each make 
a part of the patented machine or article only, 
which parts are intended and shall thereafter 
be combined to produce the patented invention, 
then each is held to be an infringer — that is to 
say, supposing a claim covers three pieces of 
mechanism : A makes one piece, B a second 
and C a third. These pieces are sold to D, who 
combines them, making thus a complete article. 
If the foregoing has been done with the intent 
to defraud, then all the parties to the con- 
spiracy are infringers. Any person who par- 
ticipates in making, using or selling is guilty 
of infringement, and liable to the owner of the 
patent, although an employee who simply 
works in connection with the making, selling 
or using without intent to defraud the patentee 
is not liable, but his employer is. To consti- 



MAEKING PATENTED AETICLE. 87 

tnte an infringement there must be some act in 
derogation of the patent owner's rights, and no 
matter how strong the presumption, it is not an 
infringement to possess, expose for sale or ad- 
vertise the patented invention. It must be 
actually made, used or sold to constitute an 
infringement. 

Intent. — The matter of intent is of some im- 
portance where a person makes a part only of 
the invention, because he does not infringe 
unless he knows that this part is to be com- 
bined with some other part to make the in- 
fringing act complete, but the actual intent of 
the real infringer — that is, one who makes, 
uses or sells the patented invention is of no 
importance. He is supposed to have notice by 
the publication of the patent and by the mark- 
ing of the invention by the owner of the patent. 

Marking Patented Article.— In order that 
no advantage may be taken of the infringer's 
ignorance, the law requires the patent owner 
to mark, if possible, the patented invention, 
stating that it is patented and when the patent 
was issued. Unless the patented invention, if 
capable of being marked, is so marked, the 
patent owner can only recover damages arising 
after actual notice to the infringer, and such 
notice must be proved. Although if it can be 
proved that the infringer really knew that the 
article was patented, then he will be liable. It 



88 MARKETING AN INVENTION. 

is not practicable to mark an art or process, 
and therefore the publicity given by the publi- 
cation and the record of the patent in the Patent 
Office is supposed to be sufficient notice to the 
public. 

No Infringement Unless Patent Has 
Issued. — It is a common practice to^market a 
new invention or an alleged new invention, and 
mark it ^* Patent applied for" or ''Patent 
pending," which is a good practice if it is 
necessary to market the invention before the 
patent issues, because it may deter others from 
going to the expense of engaging in the manu- 
facture, use or sale of the article, if they have 
reason to believe that they will be permitted to 
do this for a short time only, but one has no 
remedy for infringement unless the patent ac- 
tually issues. A patent is a creature of statute, 
and the patentee has no legal right until the 
statute gives it to him by the actual grant and 
issue of a patent, therefore, he cannot set up 
ownership and proceed against an infringer, 
until he is in possession of his full rights. 

Marketing an Invention Before Issue of 
Patent. — In this connection it may be well to 
call attention to the fact that in some foreign 
countries the patent will issue to the first appli- 
cant, even if he is not the true inventor, so that 
if a person has a valuable article he takes 
chances in placing it on the market in the 



INFEINGEMENT AFTER EXPIRATION. 89 

United States before the issue of the patent, 
and before lie lias applied for patents in foreign 
countries, if he contemplates making such ap- 
plications, for another, being thus placed in 
possession of the invention, may make applica- 
tion for and secure foreign patents thereon. 
This subject of foreign patents and their value 
to the inventor will be gone into fully in another 
chapter. 

Infringement After Expiration.— It is 
a general rule that the infringing act must 
be complete during the life of the patent, 
but there is an exception to this. The patented 
invention may be made in large quantities 
secretly during the life of the patent with the 
intent of marketing it as soon as the patent ex- 
pires. It has been held that in such case the 
infringement is actionable after the expiration 
of the patent, because it would have been im- 
possible to discover it before. 

Extends Only to the United States.—- 
As the patent is only issued for the United 
States and Territories, the infringement must 
take place within this area in order to be ac- 
tionable. To make use of or to sell the patented 
invention within this area, even though it is for 
sale abroad, is an infringement. And to make, 
use and sell the invention on an American vessel 
sailing on any seas is an infringement. But it 
is not an infringement to make or use the in- 



90 PUBLIC AND PKIVATE CORPOEATIONS. 

vention on foreign vessels if it is lawfully ob- 
tained abroad even tbougb they may be in 
American waters. 

Infringement by Government— While 
the patent is granted by the United States Gov- 
ernment, still the government or any official 
thereof has no right to the invention and cannot 
make, nse or sell it without liability, though in 
cases of public emergency the government may 
appropriate the invention, but it will have to 
give the inventor reasonable compensation. 

Public Corporations.— A municipal cor- 
poration is liable for infringement the same as 
a natural person and if the infringement is done 
by officers of the corporation and the corpora- 
tion reaps the result, it becomes liable therefor. 
But a municipal corporation is not liable for an 
infringement committed by a contractor on its 
public works, nor for the use of patented arti- 
cles by him, or the use by him of infringing 
processes. 

Private Corporations.— A private corpora- 
tion is liable for infringement, if the infringing 
act is done by any of its agents or employees, 
so long as the infringement is done for the bene- 
fit of the corporation and is directly or im- 
pliedly ratified by the corporation. To what 
extent the individual stockholders and officers 
share, in their private capacities, in the liability 
for infringing acts is still somewhat of a ques- 



JOINT OWNEES GF A PATENT. 91 

tion and embraces too many fine points to be 
considered in a work of this character. 

Joint Owners of a Patent— Joint owners 
of a patent are held to be tenants in common of 
the patent right and either has the right to 
make, nse and sell the patented invention and 
he is not liable to his coowners. A joint owner 
may, as we have already seen, even go to the 
extent of disclaiming as to some part of the 
patent without affecting the rights of the others ; 
he may alienate his interests without the consent 
of the other Joint owners and, in general, may 
act independently unless the several owners 
have by some contract specifically defined the 
relative rights. He can, in the absence of such 
contract, make any license not exclusive under 
the patent and, in general, can handle the 
patented invention as he sees fit and is not liable 
to an accounting of the profits. 

Assignor, Etc — If one makes an assign- 
ment or grant of the entire interest in the 
patent or the entire interest for a certain 
territory he becomes a stranger to the patent 
either in toto or through the specified ter- 
ritory and he is an infringer if he makes, 
uses or sells the patented invention, just as 
though he never had any interest in the patent. 
So a licensee or other person having certain 
specified rights under the patent either to make 
or to sell or to use or to do all or any of these 



92 COMBINATION CLAIMS. 

acts in a specified territory, infringes if he makes 
any other nse of the patent than that which the 
license gives him. A person having the license 
to sell in a given territory, can sell in that terri- 
tory, even though he knows, that the article 
sold will be taken into other territory which is 
not included in his license. 

Carriers. — A railroad corporation or other 
common carrier may be an infringer of a 
patent, not only by making, using or selling, 
but if the carrier conspires with another to 
transport the patented invention out of the 
jurisdiction of the United States, where it 
may be sold, the carrier is guilty of infringe- 
ment. Finally, it may be stated generally that 
any person, public or private, natural or cor- 
porate, who makes, uses or vends a patented 
invention is an infringer and as such is liable 
to the owner of the patent. 

Combination Claims. — It has already been 
pointed out that a combination claim covers the 
cooperating elements included in an operative 
device, or if the claim is for a compound, the 
combined ingredients, and that, therefore, only 
the combined things are covered by the claim, 
while the individual elements are not covered. 
Therefore, if one leaves out an element of the 
combination or adds an element so as to change 
the function of the combination, he is not an 
infringer, but if one substitutes for one element 



ABT OR PEOCESS. 93 

a well-known mechanical equivalent, if the in- 
vention comprises a combination of mechanical 
elements, he is an infringer. 

Art or Process. — An art or process is not 
dependent npon the apparatus by which it 
is carried into effect or on the results which 
it produces ; therefore, the claim does not 
usually cover any mechanism which may be 
employed in carrying out the art and it does 
not cover the resulting product of the art. An 
art usually consists of several steps which are 
enumerated in the claim, and one to infringe 
the claim must carry out these several steps, 
for like leaving out an element of a combina- 
tion so leaving out a step of the art will avoid 
the claim. To be an infringer one must practice 
the whole art, that is, he does not infringe the 
claim to an art if he only practices some of the 
steps in the claim, or uses the mechanism de- 
scribed for carrying out the art, or makes use 
of the result of the art. 

Ma,nnfactnre.— A new or improved article 
of manufacture is the new or improved thing 
itself, as distinguished from a machine or 
means of making a manufacture, as, for ex- 
ample, an improved chair, a shoe, a toy 
bank. To infringe a patent on such an in- 
vention, the article itself or one substantially 
the same must be made. The manner in which 
it is made, or the machinery used in its con- 



94 DESIGN PATENTS. 

struction, or generally even the material used 
makes no difference. The actual invention must 
be made, or used, or sold to constitute an in- 
fringing act. 

Composition of Matter.— As before re- 
marked, a composition of matter is covered by 
a claim which sets forth the several ingredients 
combined to make the composition. Such a 
claim is really then a combination claim, and 
such a claim would be infringed if a similar 
composition is made or if, instead of the in- 
gredients specified, well-known equivalents for 
them or any of them are substituted. So, or- 
dinarily, leaving out one of the ingredients or 
adding an element, if the latter really changes 
the nature of the composition, will avoid the 
claim. 

Design Patents. — Design patents relate to 
the shape, configuration or ornamentation of 
the thing and the claim refers to the appearance 
of the invention rather than to its composition 
or structure. If a similar invention is made, it 
infringes the patent on the design, and whether 
or not the invention is similar is not so much a 
matter of expert testimony as of ordinary opin- 
ion. If the alleged infringement so closely re- 
sembles the patented design that an ordinary 
person would be deceived and would purchase 
it for the patented design, it is an infringement. 

Remedies for Infringement. —To go in de- 



REMEDIES FOR INFRINGEMENT. 95 

tail into the remedies for infringements would 
necessitate an exhaustive consideration of the 
nature and title of patents, the jurisdiction of 
courts, the character of pleadings, the compe- 
tency of witnesses and a hundred other things 
which are not within the scope of this work. 
The law provides ample remedies for infringe- 
ment and any competent lawyer will know how 
to proceed according to the facts in each par- 
ticular case. He will usually bring an action 
in equity before a competent court and ask for 
an injunction to restrain the infringer from 
using the patented invention and that the in- 
fringer be compelled to render an accounting. 
A preliminary injunction is not usually granted 
unless the patent in issue has been already liti- 
gated and sustained. In equity cases, the court, 
after considering the testimony, decides whether 
or not there is an infringement, and if there is 
an infringement, grants an injunction restrain- 
ing the defendant from further infringements, 
and orders an accounting, during which pro- 
ceeding it is ascertained as nearly as possible 
how much the patent owner has been damaged, 
and the court can, in its discretion, increase the 
actual damages and award costs to either party 
or divide the costs as it sees fit and proper. 



CHAPTER VII. 

TEADE-MAEKS, PEINTS AND LABELS. 

One who lias followed tlie Official Gazette of 
the Patent Office for several years must have 
noticed the increase in the number of trade- 
marks registered. The registration of a trade- 
mark is to a certain extent in the nature of a 
patent, that is to say, the government issues to 
the owner of the trade-mark, a certificate of 
registration under the seal of the Department of 
the Interior and signed by the Commissioner of 
Patents, which is prima facie evidence that the 
owner has an exclusive right to the use of the 
mark for a term of thirty years with the privi- 
lege of renewal. The right to the trade-mark 
is practically perpetual and the value of the 
trade-mark increases with its years. Unlike a 
patented improvement or invention, the trade- 
mark is not superseded by improvements, but, 
as just remarked, its value constantly grows if 
the goods to which it is applied are of any value. 
Unlike the inventor, too, the owner of the trade- 
mark is not obliged to make a race for the 
Patent Office and put in an early application to 



TRADE-MARK DEFINED. 97 

protect his rights, and his right outside of the 
right of registration is not one of statute, but is 
a common law right. Therefore, a person can 
bring a suit for infringement of a trade-mark in 
the courts of any state or territory in the Union. 

What is a Trade-Mark.— A trade-mark is 
some distinguishing mark which a person places 
on his goods or on the package containing the 
goods to distinguish them from the goods of 
others. The trade- mark must be appropriated 
by the owner or it may be purchased from 
another, and in such case it goes with the busi- 
ness and good will so far as the particular de- 
scription of the goods is concerned. 

Characteristics of a Trade-Mark.— A per- 
son can adopt a trade-mark for any line of goods 
and it may be in the nature of any distinguish- 
ing mark, such as an emblem, the figure of a 
bird, or even a number, the peculiar arrange- 
ment of colored matter on a label or package, the 
arrangement of certain colored threads in a 
fabric, if the mark be applied to a fabric, and, 
in fact, any distinguishing mark whatever, so 
long as it is unique and arbitrary or fanciful, 
and original, either with the user or with those 
from whom he derives his title. 

It is a general rule that the trade-mark to be 
valid must not be descriptive, for instance, a 
man might use the words " yellow soap " and 
in such a case the word '* yellow" would not 



98 CHARACTESISTICS OF TRADE-MAEK. 

be a trade-mark, as it would be either descrip- 
tive of the soap or a palpable untruth, so that 
it would not be valid in either case. It is evi- 
dent that no one should have an exclusive right 
to the use of a descriptive adjective. One might 
use the word ^'Gold" soap and the word 
**Gold" would probably be registered, as it 
would not be descriptive of the soap, but would 
be suggestive of its good qualities and possibly 
of its color. One could not appropriate the 
word ' ' Best " as a trade-mark, because his goods 
might not be the best and the mark would sim- 
ply indicate their character or quality. In a 
very recent case, the Commissioner of Patents 
held the words '*Bromo Soda Mint" to be de- 
scriptive and therefore non-registrable, because 
soda mint is a well-known article and any one 
would gather from reading the title that soda- 
mint was combined with bromin or bromid. 
The courts might not hold such matter to be 
descriptive, but so far as this question is con- 
cerned, the criterion is this : Is the alleged trade- 
mark merely descriptive of some quality, color 
or other characteristic of the goods or is it 
merely suggestive ? One has a right to select a 
word for his trade-mark which is suggestive 
and perhaps this is often the best kind of a 
mark for particular kinds of goods, but it must 
not be descriptive. 
A very common trade-mark is the word 



CHAEACTERISTICS OF TRADE-MAEK. 99 

" Eoyal " as indicative of goods of the highest 
character. The word *'Qaeen" is often used 
for a similar reason and both words have been 
repeatedly held good trade-marks. Sometimes 
a person adopts a word which is really descrip- 
tive but is used in a foreign form, that is, a 
foreign word, purely descriptive, is taken, with- 
out change into the English and used as a 
trade-mark, but such a mark has been held as 
not valid, because a person who understood the 
meaning of it would see that it was just as de- 
scriptive as if used in English. Sometimes 
words which are descriptive are combined in a 
single word. Such words do not usually make 
a valid trade-mark, but they are frequently 
phonetically and fancifully spelled and in such 
cases they are usually a valid trade-mark. De- 
scriptive words are used in some instances in 
connection with a figure or emblem, and in such 
case the whole may be a valid trade-mark, but 
it is rather the figure or emblem which lends 
validity to the mark than the arrangement of 
the words. One can use an arbitrarily selected 
word which is a common word, so long as it is 
not descriptive of the article or is not a geo- 
graphical word. But one cannot use a word 
even though it is not descriptive or geographical 
but is suggestive, if it suggests something which 
is not true in fact ; that is to say, one might 
use some suggestive term which would indicate 



100 GEOGEAPHIOAL NAME. 

that the article on which the mark was used was 
made of fruit when as a matter of fact no part 
of fruit composition entered into the article 
and in such case the trade-mark would be de- 
ceptive and hence fraudulent and invalid. 

Geographical Name.— One has no exclusive 
right to use a geographical name, although it 
may happen that the word may have a popular 
meaning which is out of all proportion to its 
geographical meaning. Ta.ke the well-known 
term Trilby, made popular by Du Maurier. It 
is thought that there are several insignificant 
towns somewhere in the West which have been 
given this name. If there are it would be 
wrong, of course, to deprive one who did not 
live in the town from the use of the term as a 
trade-mark, because a vast majority seeing it 
would associate the word with the novel and 
never think of the town. But, generally speak- 
ing, the rule is that a geographical name is not 
a valid trade-mark ; for example, it would be a 
great wrong to allow a person to have the sole 
right to use the word ^' New York " when there 
might be thousands of others located in 'New 
York making similar lines of goods. 

Registration of Trade-Mark.— The pro- 
prietor or owner of a trade-mark, whether it be 
a person, firm or corporation, has a common law 
right to the use of the mark, which right can 
be enforced in the ordinary courts, but the ob- 



REQUISITES OF TRADE-MAEKS. 101 

ject of registration is to give tlie Federal Courts 
jurisdiction in trade-mark cases and make an 
easier remedy for infringement of tlie mark. 
This seems rather necessary in view of the fact 
that there are so many States in the Union so 
intimately associated in trade matters. A per- 
son can register his mark as soon as it is in law- 
ful use, but it is not necessary for him to do so, 
for if he and those from whom he derived title 
have used the mark for one hundred years, his 
right to registration will be so much the better. 
But in view of the practice and the necessity 
which may arise to protect his mark it is ad- 
visable to have the trade -mark registered in the 
Patent Office. J^ot only for this reason, but for 
the further reason that if the trade-mark is regis- 
tered and the certificate issued for it, the mat- 
ter is given more publicity and there will be 
less liability of infringement by an innocent 
user of the mark. 

Certain Requisites of Trade-Marks.— A 
trade-mark is unlike a patented article in many 
ways as already stated and, further, in this, 
that under the United States law, the owner of 
a patent is not obliged to put his patented in- 
vention in use to maintain his right to the patent, 
but a trade-mark is good only so long as it is 
used, and it must be used continuously by the 
owner in business. He need not make sales of 
goods bearing his trade-mark every day or 



102 VALID ONLY OX CERTAIN GOODS. 

every week or every montli, but lie must have 
it in constant use and must have for sale the 
goods bearing the trade- mark. If he neglects 
for any unreasonable time to use the mark he 
thereby forfeits the right to the same and an- 
other person can adopt it for the same line of 
goods. 

Trade-Mark Valid Only on Certain 
Goods, — A trade-mark is valid only on the 
goods on which it is actually used. If a person 
dealing in groceries uses the word "Star" or 
the representation of a star on canned goods, 
but does not use it on other articles, he can then 
maintain his right to the mark only on canned 
goods, and another person can use the same on 
starch, sugar, flour, or other groceries or goods. 
If a person actually uses the mark on a variety 
of goods, he is entitled thereby to the exclusive 
use of the mark on such goods, but on these 
only. A person may have a trade-mark for 
cotton goods, but this will not prevent another 
person from using the identical mark on wool- 
ens, another on silks, etc. To entitle a person 
to registration of his trade-mark, there is a 
foolish provision of our law, which will prob- 
ably soon be changed, or at least should be, 
which requires the proprietor or owner of the 
mark to make oath that he uses the trade-mark 
in foreign commerce or in trade with an Indian 
tribe, before he is entitled to registration. As 



INTERFERING TRADE-MARKS. 103 

our commerce is chiefly interstate, the absurdity 
of this requirement is manifest. Persons own- 
ing a valid trade-mark and wishing to register 
it, therefore, must, before doing so, use their 
mark to a certain extent in one of the ways 
above stated, that is, he must sell goods bearing 
the mark to an Indian tribe or ship them com- 
mercially to Canada, England, or some other 
foreign country. 

Interfering Trade-Marks.— The rule as to 
interferences in trade-mark applications, so far 
as the question of registration is concerned, is 
practically the same as to interferences between 
patent applications, but the question as to 
whether or not one has been diligent in register- 
ing does not usually enter into the case. The 
person who is the first bona fide and continuous 
user is the one entitled to registration. For ex- 
ample, suppose that a person applies for regis- 
tration for a trade -mark which would be regis- 
tered were it not for the fact that some other 
person had appropriated the mark for the same 
line of goods and had already registered the mark 
in the Patent Office. This registration may have 
taken place years before, but if the second 
applicant makes an affidavit that his trade-mark 
has been in constant use since a time antedating 
the alleged use by the registrant, he can be 
placed in interference with the registrant, and 
then proceedings will be instituted to determine 



104 VALUE OF TRADE-MAEKS. 

who was really the first and continuous user 
and to him will be given the decision. If the 
second applicant proves to be the first and 
lawful user, then registration will be granted 
him, notwithstanding the fact that registration 
has already been granted to another. 

Value of Trade-Marks.— In European coun- 
tries there are trade-marks existing which have 
been in use for generations and which have 
come to be of immense value and this is getting 
to be the case in America. As a country grows 
older and commerce more extensive, the value 
of some distinguishing mark on some certain 
line of goods becomes greater and greater. 
There are already hundreds of trade-marks used 
in the United States which are of almost fabu- 
lous value, and it is not unusual for a trade- 
mark to be worth more than a valuable patent. 
It behooves a person, then, who is manufac- 
turing good goods and proposes to continue 
such manufacture, to adopt some good mark, 
if he has not already done so, and have this 
mark registered in the Patent Oflice. After a 
time, people in the trade will then call for such 
a brand of goods and this brand eventually 
becomes extremely valuable and identified with 
the manufacturer. There is a chance for great 
discrimination in the adoption of a trade-mark 
and one who gets a happy idea and adopts a 
valid and unique mark is at once in possession 



CONCER^TING INFBINGEMENT. 105 

of sonietliing which will materially assist in 
making his business a success. 

What is an Infringement of a Trade- 
Mark. — If the trade-mark is a word, it is 
infringed by one, other than the owner, who 
uses a word so similar that an ordinary person 
would be deceived and so buy the infringing 
article in mistake for the real one. It has been 
held also that if the word does not in appear- 
ance resemble the trade-mark very closely, but 
has a similar sound when spoken, then it is also 
an infringement. If the trade-mark is some- 
thing other than a word, it is infringed by any- 
thing which so closely resembles it as to deceive 
the ordinary purchaser and lead him to mistake 
one for the other. The purchaser is not ex- 
pected to use more than ordinary care or to 
make any special examination, but if under 
ordinary circumstances he would mistake one 
article for the other, then one is an infringe- 
ment of the other mark. 

Remedies for Infringement.— The reme- 
dies for infringing a trade-mark are practically 
like those for infringement of a patent right, 
except that the trade mark owner can apply to 
either the Federal or State courts, according to 
whether or not the trade-mark has been regis- 
tered. If he proves infringement he can 
get an injunction restraining the infringer from 
the use of the trade-mark and can also recover 



106 PRINTS AND LABELS. 

damages according to the circumstances of the 
case. 

Prints and Labels.--The word print, as 
used in the act providing for registration, is de- 
fined as : ' ^An artistic representation or intel- 
lectual production, not borne by an article of 
manufacture or vendible commodity, but in 
some fashion pertaining thereto, such, for in- 
stance, as an advertisement thereof." 

A' print is registrable both in the Patent 
Office and with the Librarian of Congress, ac- 
cording to whether it belongs to an article of 
manufacture in the one case or pictorial illus- 
trations or works connected with the fine arts 
in the other. A print to be registered in the 
Patent Office must relate or belong to, but not 
be borne by, an article of manufacture or ven- 
dible commodity. No prints were registered in 
the Patent Office prior to 1893, and less than 
one hundred had been registered up to and in- 
cluding 1898. 

The word ''label," as referred to in the act 
relating to prints and labels, is defined as : "An 
artistic representation or intellectual production 
impressed or stamped directly on the article of 
manufacture, or upon a slip or piece of paper 
or other material to be attached in any manner 
to the manufactured articles, or to bottles, 
boxes and packages containing them, to indicate 
the contents of the package, the name of the 



PEINTS AND LABELS. 107 

manufacturer or the place of manufacture, the 
quality of goods, directions for use, etc." By 
articles of manufacture to which, labels are 
applicable is meant all vendible commodities 
produced by hand, by machinery or by art. 
JSTo label can be registered in the Patent OSce 
unless it properly belongs to and is to be borne 
by an article of commerce, and though registra- 
tion of labels was refused for several years, 
they began to be allovv^ed again in 1896. 

To entitle the proprietor of any print or label 
to registration, the applicant must sign the ap- 
plication and there must also be filed in the 
Patent Office five copies of the print or label, one 
of which, when the print or label is registered, is 
certified under the seal of the Commissioner of 
Patents and returned to the proprietor. The 
certificate, like a copyright, continues in force 
for twenty- eight years and like a copyright can 
be extended for a further term of fourteen years 
if the second application is filed within six 
months before the expiration of the original 
term and the other regulations with regard to 
original applications are complied with. Within 
two months from the date of said renewal, the 
applicant must cause a copy of the record 
thereof to be published for four weeks in one or 
more newspapers printed in the United States. 
The fee for registering a print or label is six 
dollars. If the Examiner at the Patent Office 



108 FEINTS AND LABELS. 

refuses registration, the applicant can petition 
the Commissioner without fee and have the 
examiner's decision reviewed. Like a trade- 
mark, the print or label is infringed by the un- 
lawful use of the print or label, or a very 
similar one, by another than the owner thereof. 
The act providing for the registration of 
prints and labels is construed to entitle them to 
registration without an examination as to their 
novelty, but though registration may not be re- 
fused because of a similar print or label, the 
practice of the Patent Office is to require all 
trade-mark matter in the label to be first regis- 
tered as trade-marks. 



109 



CHAPTER yill. 

COPTKIGHTS. 

Many people have a notion tliat the Copy- 
right Law is intended for the benefit of inven- 
tors, tradesmen and mannfactnrers, and that a 
label, a print, a trade-mark, or even, sometimes, 
a process or mechanism can be protected by 
copyright. This is a mistaken idea. The Copy- 
right Act is for the protection of purely literary 
or artistic productions, as a book, a musical 
composition, a picture or a statue. Perhaps the 
law, as published by the Librarian of Congress, 
is, in this regard, the best guide, and is sub- 
stantially as follows : 

Sectioit 4952. — (. . . . The) author, in- 
ventor, designer or proprietor of any book, 
map, chart, dramatic or musical composition, 
engraving, cut, print, or photograph or nega- 
tive thereof, or of a painting, drawing, chromo, 
statue, statuary and of models or designs 
intended to be perfected as works of the fine 
arts, and the executors, administrators or as- 
signs of any such person shall, upon complying 
with the provisions of this chapter, have the 



no COPYRIGHTS. 

sole liberty of printing, reprinting, publishing, 
completing, copying, executing, finishing and 
vending the same ; and, in the case of a dra- 
matic composition, of publicly performing or 
representing it, or causing it to be performed 
or represented by others. And authors or their 
assigns shall have exclusive right to dramatize 
or translate any of their works for which copy- 
right shall have been obtained under the laws 
of the United States. (....) 

In the construction of this act the words 
'* engraving," *'cut" and "print" shall be ap- 
plied only to pictorial illustrations or works 
connected with the fine arts, and no prints or 
labels designed to be used for any other articles 
of manufacture shall be entered under the copy- 
right law, but may be registered in the Patent 
Office. And the Commissioner of Patents is 
hereby charged with the supervision and con- 
trol of the entry or registry of such prints or 
labels, in conformity with the regulations pro- 
vided by law as to copyright of prints, except 
that there shall be paid for recording the title 
of any print or label, not a trade-ma.rk, six 
dollars, which shall cover the expense of fur- 
nishing a copy of the record, under the seal of 
the Commissioner of Patents, to the party en- 
tering the same. (. . . .) 

Copyrights are granted for the term of twenty- 
eight years from the time of recording the title 



COPYRIGHTS. Ill 

thereof, and in the manner hereinafter directed, 
and within six months before the expiration of 
the first term, the author, inventor or designer, 
if he be still living, can renew the copyright for 
the further term of fourteen years, or, if he be 
dead, his widow or children shall have the 
exclusive right to the copyright, and can get a 
continuance thereof. Copyrights carry the ex- 
clusive right to the property covered, and are 
assignable in law and by a suitable instrument 
in writing, and the assignment must be recorded 
in the office of the Librarian of Congress within 
sixty days after its execution. If it is not so 
recorded, it will be void as against any subse- 
quent purchaser or mortgagee, for a valuable 
consideration, who has no notice of the pre- 
vious assignment. Before the copyright is 
complete, it is necessary to make a deposit 
with the Librarian of Congress of the title or 
description, also to deposit two copies of the 
complete thing in its best form when first pub- 
lished, and if the owner of the copyright is a 
foreign resident outside of the United States, 
the production, if printed, must be from type 
set within the United States. The copyrighted 
matter cannot be imported, except in a few 
instances, which will be hereinafter given. As 
to these details. Section 4956 of the Revised 
Statutes is very specific, and is as follows : 
Section 4956. — '''No person shall be entitled 



112 COPYRIGHTS. 

to a copyright unless lie shall, on or before the 
day of publication, in this or any foreign coun- 
try, deliver at the office of the Librarian of 
Congress, or deposit in the mail within the 
United States, addressed to the Librarian of 
Congress, at Washington, District of Columbia, 
a printed copy of the title of the book, map, 
chart, dramatic or musical composition, en- 
graving, cut, print, photograph or chromo, or 
a description of the painting, drawing, statue, 
statuary, or a model or design, for a work of 
the fine arts, for which he desires a copyright ; 
nor unless he shall also, not later than the day 
of the publication thereof, in this or any foreign 
country, deliver at the office of the Librarian of 
Congress, at Washington, District of Columbia, 
or deposit in the mail, within the United States, 
addressed to the Librarian of Congress, at 
Washington, District of Columbia, two copies 
of such copyright book, map, chart, dramatic 
or musical composition, engraving, chromo, 
cut, print or photograph, or in case of a paint- 
ing, drawing, statue; statuary, model or design 
for a work of the fine arts, a photograph of the 
same, provided that in the case of a book, 
photograph, chromo or lithograph, the two 
copies of the same required to be delivered or 
deposited as above, shall be printed from type 
set within the limits of the United States, or 
from plates made therefrom, or from negatives, 



COPYEIGHTS. 113 

or drawings on stone made within the limits of 
the United States, or from transfers made there- 
from. During the existence of such copyright 
the importation into the United States of any- 
book, chromo, lithograph or photograph, so 
copyrighted, or any edition or editions thereof, 
or any plates of the same not made from type 
set, negatives, or drawings on stone made 
within the limits of the United States, shall be, 
and is hereby prohibited, except in the cases 
specified in paragraphs 512 to 516, inclusive, in 
section two of the act entitled, ' ' An act to re- 
duce the revenue and equalize the duties on 
imports and for other purposes," approved 
October 1st, 1890 ; (. . . .) and except in the 
case of persons purchasing for use, and not for 
sale, who import, subject to the duty thereon, not 
more than two copies of such book at any one 
time ; and except in the case of newspapers 
and magazines, not containing in whole or in 
part matter copyrighted under the provisions 
of this act, unauthorized by the author, which 
are hereby exempted from prohibition of im- 
portation, provided, nevertheless, that in the 
case of books in foreign languages, of which 
only translations in English are copyrighted, 
the prohibition of importation shall apply only 
to the translation of the same, and the importa- 
tion of the books in the original language shall 
be permitted." (....) The exceptions 



114 COPYRIGHTS. 

above referred to, being included in paragraphs 
612 to 516, are these : 

512. Books, engravings, photographs, bound 
or unbound etchings, maps and charts, which 
shall have been printed and bound or manufac- 
tured more than twenty years at the date of 
importation. 

513. Books and pamphlets printed exclu- 
sively in languages other than English ; also 
books and music, in raised print, used exclu- 
sively by the blind. 

514. Books, engravings, photographs, etch- 
ings, bound or unbound, maps and charts im- 
ported by authority or for the use of the United 
States or for the use of the Library of Congress. 

515. Books, maps, lithographic prints and 
charts, especially imported, not more than two 
copies in any one invoice, in good faith, for the 
use of any society incorporated or established 
for educational, philosophical, literary or re- 
ligious purposes, or for encouragement of the 
fine arts, or for the use or by order of any 
college, academy, school or seminary of learn- 
ing in the United States, subject to such regu- 
lations as the Secretary of the Treasury shall 
prescribe. 

516. Books, or libraries, or parts of libraries, 
and other household effects of persons or fami- 
lies from foreign countries, if actually used 
abroad by them not less than one year, and not 



COPYRIGHTS. 115 

intended for any other person or persons, nor 
for sale. (51st Congress, 1st Session, chap. 
1244 ; 26 Statutes at Large, p. 604.) 

Section 4957.— The Librarian of Congress 
shall record the name of such copyright book, 
or other article, forthwith in a book to be kept 
for that purpose, in the words following; 
"Library of Congress, to wit: Be it remem- 
bered that on the day of A. B., of 

, hath deposited in this office the title of a 

book (map, chart, or otherwise, as the case may 
be, or description of the article), the title or de- 
scription of which is in the following words, to 
wit : (here insert the title or description) the 
right whereof he claims as author (originator 
or proprietor, as the case may be), in confor- 
mity with the laws of the United States respect- 
ing copyrights. C. D., Librarian of Congress.'' 
And he shall give a copy of the title or descrip- 
tion, under the seal of the Librarian of Congress, 
to the proprietor, whenever he shall require it. 

Section 4958.— The Librarian of Congress 
shall receive from the persons to whom the ser- 
vices designated are rendered, the following 
fees : 

1. For recording the title or description of 
any copyright book or other article, fifty cents. 

2. For every copy under seal of such record 
actually given to the person claiming the copy- 
right, or his assigns, fifty cents. 



116 COPYRIGHTS. 

3. For recording and certifying any instru- 
ment of writing for the assignment of a copy- 
riglit, one dollar. 

4. For every copy of an assignment, one 
dollar. 

All fees so received shall be paid into the 
treasury of the United States : Provided, That 
the charge for recording the title or description 
of any article entered for copyright, the pro- 
duction of a person not a citizen or resident of 
the United States, shall be one dollar, to be paid 
as above into the treasury of the United States, 
to defray the expenses of lists of copyrighted 
articles as hereinafter provided for. 

And it is hereby made the duty of the 
Librarian of Congress to furnish to the Secre- 
tary of the Treasury copies of the entries of 
titles of all books and other articles wherein the 
copyright has been completed by the deposit of 
two copies of such book printed from type set 
within the limits of the United States, in accor- 
dance with the provisions of this act and by the 
deposit of two copies of such other article made 
or produced in the United States ; and the 
Secretary of the Treasury is hereby directed to 
prepare and print, at intervals of not more than 
a week, catalogues of such title-entries for dis- 
tribution to the collectors of customs of the 
United States and to the postmasters of all post 
offices receiving foreign mails, and such weekly 



COPYEIGHTS. 117 

lists, as they are issued, shall be furnished to 
all parties desiring them, at a sum not exceed- 
ing five dollpvis per annum ; and the Secretary 
and the Postmaster-General are hereby empow- 
ered and required to make and enforce such 
rules and regulations as shall prevent the im- 
portation into the United States, except upon 
the conditions above specified, of all articles 
prohibited by this act. 

Section 4959. — The proprietor of every copy- 
right book or other article shall deliver at the 
office of the Librarian of Congress, or deposit in 
the mail, addressed to the Librarian of Congress, 
at Washington, District of Columbia, (....) 
a copy of every subsequent edition wherein any 
substantial changes shall be made : Provided, 
however. That the alterations, revisions and 
additions made to books by foreign authors, 
heretofore published, of which new editions 
shall appear subsequently to the taking effect 
of this act, shall be held and deemed capable of 
being copyrighted as above provided for in this 
act, unless they form a part of the series in 
course of publication at the time this act shall 
take effect. 

Section 4960. — For every failure on the part 
of the proprietor of any copyright to deliver, 
or deposit in the mail, either of the published 
copies, or description, or photograph, required 
by Sections 4956 and 4959, the proprietor of the 



118 COPYRIGHTS. 

copyright shall be liable to a penalty of twenty- 
five dollars, to be recovered by the Librarian of 
Congress, in the name of the United States, in 
an action in the nature of an action of debt, in 
any district court of the United States within 
the jurisdiction of which the delinquent may 
reside or be found. 

Section 4961. — The postmaster to whom such 
copyright book, title, or other article is deliv- 
ered shall, if requested, give a receipt there- 
for ; and when so delivered, he shall mail it to 
its destination. 

Section 4962. — 'No person shall maintain an 
action for the infringement of his copyright un- 
less he shall give notice thereof by inserting in 
the several copies of every edition published, 
on the title-page, or the page immediately fol- 
lowing, if it be a book; or if a map, chart, mu- 
sical composition, print, cut, engraving, photo- 
graph, painting, drawing, chromo, statue, stat- 
uary, or model or design intended to be 
perfected and completed as a work of the 
fine arts, by inscribing upon some visible por- 
tion thereof, or of the substance on which the 
same shall be mounted, the following words, 
viz: ' 'Entered according to act of Congress, in 

the year , by A. B., in the office of the 

Librarian of Congress, at Washington"; or, at 
his option, the word "Copyright," together 
with the year the copyright was entered, and 



COPYEIGHTS. 119 

the name of the party by whom it was taken 
out, thus: '^Copyright, 18— by A. B." (....) 

That manufacturers of designs for molded 
decorative articles, tiles, plaques, or articles of 
pottery or metal subject to copyright may put 
the copyright mark prescribed by Section 4962 
of the Revised Statutes, and acts additional 
thereto, upon the back or bottom of such arti- 
cles, or in such other place upon them as it 
has heretofore been usual for manufacturers 
of such articles to employ for the placing of 
manufacturers, merchants, and trade-marks 
thereon. 

Section 4963. — Every person who shall insert 
or impress such notice, or words of the same 
purport, in or upon any book, map, chart, 
dramatic or musical composition, print, cut, 
engraving or photograph, or other article, 
whether such article be subject to copyright or 
otherwise, for which he has not obtained a copy- 
right, or shall knowingly issue or sell any arti- 
cle bearing a notice of United States copyright 
which has not been copyrighted in this country ; 
or shall import any book, photograph, chromo 
or lithograph, or other article bearing such no- 
tice of copyright or words of the same purport, 
which is not copyrighted in this country, shall 
be liable to a penalty of one hundred dollars, 
recoverable one-half for the person who shall 
sue for such penalty and one-half to the use of 



120 COPYEIGHTS. 

the United States ; and tlie importation into the 
United States of any book, chromo, lithograph 
or photograph, or other article bearing such 
notice of copyright, when there is no existing 
copyright thereon in the United States, is pro- 
hibited ; and the circuit courts of the United 
States sitting in equity are hereby authorized 
to enjoin the issuing, publishing or selling of any 
article marked or imported in violation of the 
United States copyright laws, at the suit of any 
person complaining of such violation : Provided, 
That this act shall not apply to any importation 
of or sale of such goods or articles brought into 
the United States prior to the passage hereof. 

Section 4964. — Every person who, after the 
recording of the title of any book and the de- 
positing of two copies of such book as provided 
by this act, shall, contrary to the provisions of 
this act, within the term limited, and without 
the consent of the proprietor of the copyright 
first obtained in writing, signed in the presence 
of two or more witnesses, print, publish, drama- 
tize, translate or import, or, knowing the same 
to be so printed, published, dramatized, trans- 
lated or imported, shall sell or expose to sale 
any copy of such book, shall forfeit every copy 
thereof to such proprietor, and shall also for- 
feit and pay such damages as may be recovered 
in a civil action by such proprietor in any court 
of competent jurisdiction. 



COPYRIGHTS. 121 

Section 4965. — If any person, after tlie re- 
cording of the title of any map, chart, dramatic 
or musical composition, print, cut, engraving, 
or photograph, or chromo, or of the descrip- 
tion of any painting, drawing, statue, statuary 
or model or design intended to be perfected 
and executed as a work of the fine arts, as pro- 
vided by this act, shall, within the term limited, 
contrary to the provisions of this act, and with- 
out the consent of the proprietor of the copy- 
right first obtained in writing, signed in pres- 
ence of two or more witnesses, engrave, etch, 
work, copy, print, publish, dramatize, translate 
or import, either in whole or in part, or by 
varying the main design, with intent to evade 
the law, or, knowing the same to be so printed, 
published, dramatized, translated or imported, 
shall sell or expose to sale any copy of such 
map or other article, as aforesaid, he shall for- 
feit to the proprietor all the plates on which the 
same shall be copied, and every sheet thereof, 
either copied or printed, and shall further for- 
feit one dollar for every sheet of the same found 
in his possession, either printing, printed, copied, 
published, imported or exposed for sale ; and in 
case of a painting, statue or statuary, he shall 
forfeit ten dollars for every copy of the same in 
his possession, or by him sold or exposed for 
sale : Provided, however. That in case of any 
such infringement of the copyright of a photo- 



122 COPYRIGHTS. 

grapli made from any object not a work of fine 
arts, tlie sum to be recovered in any action 
brought under the provisions of this section 
shall be not less than one hundred dollars, nor 
more than five thousand dollars, and. Provided, 
further, That in case of any such infringement 
of the copyright of a painting, drawing, statue, 
engraving, etching, print, or m^odel or design 
for a work of the fine arts, or of a photograph 
of a work of the fine arts, the sum to be recov- 
ered in any action brought through the provi- 
sions of this section shall be not less than two 
hundred and fifty dollars, and not more than 
ten thousand dollars. One-half of all the fore- 
going penalties shall go to the proprietors of 
the copyright and the other half to the use of 
the United States. 

Section 4966. — Any person publicly perform- 
ing or representing any dramatic or musical 
composition for which a copyright has been 
obtained, without the consent of the proprietor 
of said dramatic or musical composition, or his 
heirs or assigns, shall be liable for damages 
therefor, such damages in all cases to be as- 
sessed at such sum, not less than one hundred 
dollars for the first and fifty dollars for every sub- 
sequent performance, as to the court shall ap- 
pear to be just. If the unlawful performance 
and representation be willful and for profit, 
such person or persons shall be guilty of a 



COPYKIGHTS. 123 

misdemeanor, and upon conviction be impris- 
oned for a period not exceeding one year. Any 
injunction that may be granted upon hearing 
after notice to the defendant by any circuit 
court of the United States, or by a judge 
thereof, restraining and enjoining the perform- 
ance or representation of any such dramatic or 
musical composition, may be served on the par- 
ties against whom such injunction may be 
granted anywhere in the United States, and 
shall be operative and may be enforced by pro- 
ceedings to punish for contempt or otherwise 
by any other circuit court or judge in the 
United States ; but the defendants in said ac- 
tion, or any or either of them, may make a 
motion in any other circuit in which he or they 
may be engaged in performing or representing 
said dramatic or musical composition to dis- 
solve or set aside the said injunction upon 
such reasonable notice to the plaintiff as the 
circuit court or the judge before whom said 
motion shall be made shall deem proper ; ser- 
vice of said motion to be made on the plaintiff 
in person or on his attorneys in the action. The 
circuit coui'ts or judges thereof shall have 
jurisdiction to enforce said injunction and to 
hear and determine a motion to dissolve the 
same, as herein provided, as fully as if the 
action were pending or brought in the circuit 
in which said motion is made. 



124 COPYEIGHTS. 

The clerk of the court, or judge granting the 
injunction, shall, when required so to do by the 
court hearing the application to dissolve or en- 
force said injunction, transmit without delay 
to said court a certified copy of all the papers 
on which the said injunction was granted that 
are on file in his office. 

Sectioist 4967. — Every person who shall print 
or publish any manuscript whatever, without 
the consent of the author or proprietor first 
obtained (. . . .) shall be liable to the author 
or proprietor for all damages occasioned by 
such injury. 

Section 4968.— No action shall be main- 
tained in any case of forfeiture or penalty 
under the copyright laws, unless the same is 
commenced within two years after the cause of 
action has arisen. 

Section 4969. — In all actions arising under 
the laws respecting copyrights the defendant 
may plead the general issue, and give the 
special matter in evidence. 

Section 4970. — The circuit courts, and dis- 
trict courts having the jurisdiction of circuit 
courts, shall have power, upon bill in equity, 
filed by any party aggrieved, to grant injunc- 
tions to prevent the violation of any right secured 
by the laws respecting copyrights, according to 
the course and principles of courts of equity, on 
such terms as the court may deem reasonable. 



COPYKIGHTS. 125 

The act approved Marcli 3, 1891 (51st Con- 
gress, 1st Session, chap. 565 ; 26 Statutes at 
Large, pp. 1106 1110), in addition to the amend- 
ments, noted above, of Sections 4952, 4954, 4956, 
4958, 4959, 4963, 4964, 4965 and 4967, provides 
further as follows : 

"That for the purpose of this act each 
volume of a book in two or more volumes, 
when such volumes are published separately, 
and the first one shall not have been issued 
before this act shall take effect, and each num- 
ber of a periodical shall be considered an inde- 
pendent publication, subject to the form of 
copyrighting as above." (Sec. 11.) 

"This act shall go into effect on the first day 
of July, Anno Domini eighteen hundred and 
ninety-one." (Sec. 12.) 

"That this act shall only apply to a citizen 
or subject of a foreign state or nation when 
such foreign state or nation permits to citizens 
of the United States of America the benefit of 
copyright on substantially the same basis as its 
own citizens ; or when such foreign state or 
nation is a party to an international agreement 
which provides for reciprocity in the granting 
of copyright, by the terms of which agreement 
the United States of America may, at its pleas- 
ure, become a party to such agreement. The 
existence of either of the conditions aforesaid 
shall be determined by the President of the 



126 COPYRIGHTS. 

United States, by proclamation made from 
time to time as tlie purposes of this act may- 
require." (Sec. 13.) 

The following is a list of foreign countries 
with which the United States have established 
copyright relations : 

July 1, 1891— Belgium, France, Great Britain 
and her possessions, and Switzerland. (Statutes 
at Large, vol. 27, pp. 981, 982.) 

April 15, 1892— Germany. (Statutes at Large, 
vol. 27, pp. 1021, 1022.) 

October 31, 1892— Italy. (Statutes at Large, 
vol. 27, p. 1043.) 

May 8, 1893 — Denmark. (Statutes at Large, 
vol. 28, p. 1219.) 

July 20, 1893— Portugal. (Statutes at Large, 
vol. 28, p. 1222.) 

July 10, 1895— Spain. (Statutes at Large, vol. 
29, p. 871.) 

February 27, 1896— Mexico. (Statutes at 
Large, vol. 29, p. 877.) 

May 25, 1896 — Chile. (Statutes at Large, vol. 
29, p. 880.) 

The courts of the United States have jealously 
and strictly guarded the interests of copyright 
owners and are quick to provide a remedy in 
case of infringement of the copyright. The 
whole matter of publication, for instance, is cov- 
ered by the copyrights except that the title is 
not covered by a copyright and may be a trade- 



COPYRIGHTS. 127 

mark, but the body of the publication is copy- 
righted and one who, without permission of the 
owner, publishes any extended part of the mat- 
ter, either in the identical shape or in a color- 
able variation, is liable as an infringer. The in- 
tent has something to do with this, however, as 
a person may make use liberally of quotations 
if he does so and gives credit to the author, that 
is to say, he cannot make selections and publish 
them merely as selections from the copyrighted 
work, but he may write a review of a book, if 
it be a book, and make liberal quotations so as 
to make the review readable and intelligible. 
But he cannot make any commercial use of the 
copyrighted matter without infringement, and 
such use is not necessarily in publishing. If 
the copyrighted matter be a musical or dramatic 
composition, the owner of the copyright can 
prevent the public performance of the composi- 
tion either by speaking or singing, and even if 
the composition were memorized, he can prevent 
it from being spoken and has an action for in- 
fringement of a copyright as well as a right to 
relief by injunction. In this connection atten- 
tion is called to Section 4966 of the Statutes, 
which is herein referred to and which refers 
especially to the questions of damages and in- 
junctions. 



128 



CHAPTEE IX. 

TITLE, ASSIGNMENT, GRANTS, MORTGAGES AND 
LICENSES. 

A patent is as mncli property as a piece of 
real estate or a chattel. It follows then that, 
like other property, it may be sold and trans- 
ferred, and this right is expressly provided for 
by Section 4988 of the Revised Statutes. There 
are fonr well-known transfers of an interest in 
or concerning patents, to wit : An assignment, 
a grant, a mortgage and a license. 

Assignment.— An assignment transfers the 
whole or an undivided interest in the patent for 
every portion of the United States. The assign- 
ment must be written or printed and duly 
signed. No especial form is required so long 
as the assignment is absolute and the intent 
clear. It is better, however, to follow, as nearly 
as circumstances will permit, the usual form, as 
this has become well-known and its provisions 
and restrictions thoroughly understood. It is 
not necessary that the assignment be witnessed, 
sealed or acknowledged, but it is better to have 
it witnessed, sealed and acknowledged, as 



ASSIGNMENTS. 129 

then all the requirements wMcli may contin- 
gently arise are met, and it is especially better 
to follow such forms, particularly as far as 
acknowledgment is concerned, because it ren- 
ders the instrument and its execution easy of 
proof when necessary. This applies to other 
conveyances of a patent as well as to assign- 
ments. 

According to the Patent Office practice : '*An 
assignment, grant or conveyance of a patent 
will be void as against any subsequent purchaser 
or mortgagee, for a valuable consideration, 
without notice, unless recorded in the Patent 
Office within three months from the date thereof. 
If any such assignment, grant or conveyance of 
any patent shall be acknowledged before any 
notary public of the several States or Territories 
or the District of Columbia or any Commissioner 
of the United States Circuit Court or before any 
secretary of legation or consular officer author- 
ized to administer oafchs or perform notarial 
acts, under Section 1750 of the Revised Statutes, 
the certificate of such acknowledgment, under 
the hand and official seal of such notary or other 
officer, shall be prima facie evidence of the exe- 
cution of such assignment, grant or convey- 
ance." No instrument will be recorded, unless 
in the judgment of the Commissioner it amounts 
to an assignment, grant, mortgage, lien, incum- 
brance or license, or which does not affect the 



130 ASSIGNMENTS. 

title of tlie patent or invention to wliicli it re- 
lates. 

An assignment or other conveyance should 
identify the patent by date and number as well 
as by title, or if the invention is not patented 
but pending in the Patent Office the name of the 
inventor, the date of the application, the title 
of the invention, and, if possible, the serial num- 
ber should be stated. Instruments are some- 
times recorded which do not amount to an assign- 
ment, grant, mortgage, lien, incumbrance or 
license, and while such matter should not ap- 
pear on the records, still if it is there it may be 
well to take notice of it. 

Where assignments are made conditional on 
the performance of certain stipulations, the 
Patent Office can have no notice of whether or 
not the conditions are fulfilled, and so the 
records will show an absolute transfer, unless 
the transfer is canceled on the record by the 
consent of the parties to the instrument or by 
the decree of a competent court. One can assign 
an invention and agree to assign all future im- 
provements and the instrument will not be an 
assignment, so far as the future improvements 
are concerned, but the contract will be valid, 
and if the party makes such improvements he 
can be compelled by a competent court to make 
an assignment as stipulated in the original con- 
tract. It is customary to make assignments of 



ASSIGNMENTS. 131 

inventions and of the patent which may issue 
therefor before the patent has actually issued, 
but, in such case, the assignment must be re- 
corded in the Patent Office at a date not later 
than that on which the final fee is paid. If the 
patent is to issue to the assignee, the assign- 
ment must authorize and request the Commis- 
sioner of Patents to so issue the patent. This 
may be important to the parties interested for 
this reason ; that if there is any shadow of 
equities between the parties and it should be- 
come desirable to assign the patent, the pro- 
posed assignees may raise quibbles concerning 
the title and hold that the equitable title is in 
one person and the legal title in the other, 
whereas if the patent issues to the assignee no 
such questions can be raised. For this reason 
it is usually desirable to have the legal and 
equitable title merged in one person. If a per- 
son dies owning a patent, his executor or ad- 
ministrator can make a transfer thereof. If a 
person makes a transfer of all his property of 
every kind and description whatsoever, it would 
include and carry with it his patent rights. 
The form of an assignment varies with almost 
every case. There are many nice questions 
which come up concerning transfers and the safe 
way for the parties to a transfer is to have some 
competent patent lawyer prepare the necessary 
papers. 



132 GKANTS, MOETGAGES, LICENSES. 

A Grant.— A grantee acquires by the grant 
tlie exclusive right under the patent to make, 
use and vend and to grant to others the right to 
make, use and vend the thing patented vfithin 
and throughout a specified part of the United 
States, excluding the patentee therefrom. The 
essential difference between a grant and an 
assignment is that the assignment conveys the 
whole interest or an undivided part thereof for 
the whole territory of the United States, while 
a grant conveys an exclusive sectional interest, 
that is, an exclusive interest for something less 
than that for the whole country. The law re- 
lating to assignments relates also to grants, and 
what has been said in this regard in relation to 
assignments is true as regards grants. 

A Mortgage.— A mortgage of a patent is 
substantially like a mortgage of any other piece 
of property. It can, in the nature of things, 
convey no more than an assignment and the 
title is a defeasible one, that is to say, if the 
conditions, as the payment of money at a given 
time, are complied with, then the transfer be- 
comes void. 

The mortgage to be good as against third par- 
ties must be recorded in the Patent Office within 
three months from the date of its execution. 

A License.— A license carries a less interest 
and a different one from any of the foregoing 
conveyances. A license may be oral, if it can 



LICENSES. 133 

be strictly proved, but is usually written or 
printed and in such case must be duly signed. 
A license may convey a right to make or use or 
vend or it may convey a right to do all three 
within a certain territory ; it may convey any 
interest other than an assignment or a grant. 
A license may be revocable or irrevocable. It 
may be exclusive. Ifc may cover a small part 
of the United States or the whole territory 
thereof. It may be for six months or for the 
whole term of the patent and it may convey all 
the above rights and still be a license merely, 
for it may leave the title in another who has a 
right to sue, or have the patent reissued or have 
the right to disclaim under it. Sometimes a 
license is broad enough to give the exclusive 
right to make, sell and convey the patented 
thing throughout the whole territory of the 
United States for the full term of the patent, 
except that in case of certain contingencies, the 
license shall cease and all rights revert to the 
legal owner. The patent can be subdivided to 
such an extent that almost any conceivable use 
or right under a patent can be conveyed by it. 
What distinguishes it from an assignment and 
grant is that the whole interest has not been 
conveyed, but that a certain interest reversion- 
ary, or otherwise, remains in the owner. Some- 
times a license is merely implied, as in the case 
already referred to, where an employee makes 



13i WAREANTY. 

an invention on the time or with the tools or 
materials or at the expense of his employer. In 
such a case the employer has an implied license, 
which the court will enforce, to use the patented 
thing. If a license is to be forfeited on any 
specified conditions, the conditions when they 
arise will work a forfeiture, but if the license is 
to be forfeited by the breach of conditions or by 
certain acts of the licensee, the fact must be 
clearly set forth in the license itself, or else a 
decree of a court is necessary to declare a for- 
feiture. A license, under a patent, is a nice 
form of contract and must be prepared with 
great care by some person skilled in such mat- 
ters. 

Warranty.— As to warranty, the rule is prac- 
tically the same as it is in regard to the transfer 
of other property. If the assignor expressly 
warrants his title, he is, of course, liable under 
the covenant for a breach of warranty. If he 
conveys all right in the patented invention it 
has been held that this amounts to a warranty 
of title, but if he conveys only such rights as he 
has, he does not become liable, even though it 
should prove he had no rights, for this does not 
amount to a warranty of the title. If the as- 
signor undertakes to assign a certain specified 
interest, then he is held to warrant that he has 
such an interest to assign. 

Undivided Interest in Patents.— It is a 



UNDIVIDED INTEREST. 135 

common saying that parties owning undivided 
interests in a patent are like tenants in common. 
Either can sell his interest without the consent 
of the other. Either can grant a license, though, 
of course, he cannot grant an exclusive license 
as this would interfere with the rights of the 
other. But, generally speaking, each can do 
with his interest what he sees fit. It has even 
been held that one cannot be called to an ac- 
counting by the other, because, as one judge 
has said : *' None of the parties interested has 
any right to control the action of the other par- 
ties or to exercise any supervision over them. 
It is difficult to see how an equitable right of 
contribution can exist among any of them un- 
less it includes all the parties and extends 
through the whole term of the patent right. 
And if there be a claim for contribution of 
profits, there should also be a correlative claim 
for losses, and an obligation on each party to 
use due diligence in making his interest profit- 
able. It is not, and cannot be contended that 
these parties are copartners, but the idea of 
mutual contribution for profits and losses would 
require even more than copartnership." 



136 



CHAPTER X. 

FOREiaN PATEITTS. 

Many United States inventors procure foreign 
patents on their inventions and frequently do 
so under a misapprehension of the value of the 
foreign patents and of the conditions, some- 
times onerous, which must be complied with to 
keep such patents in force. Generally speak- 
ing, it is not advisable for an inventor in the 
United States to procure foreign patents unless 
it be, perhaps, in Canada, because here a manu- 
facturer may enter into competition with parties 
holding the patent in the United States. 
Whether or not the inventor shall obtain a for- 
eign patent or patents depends largely on the 
nature of the invention ; largely, too, on his 
means of exploiting it, and also very largely on 
whether or not he has or can make connections 
with people in the foreign countries who may 
make use of the invention. A United States 
patent is almost unique in this, that it is granted 
unconditionally for the term of seventeen years 
(except in the case of design patents) and the 
patentee or his assignee is required to pay no 



FOREIGN PATENTS. 137 

taxes or do no work with the invention nnless 
he feels so inclined and in such cases his rights 
are not jeopardized. 

In almost all foreign countries the laws are 
different from those of the United States. 
Usually there is a cumulative tax, being nominal 
at first, and gradually increasing during the 
life of the patent, while in others there is a fixed 
yearly tax. Most foreign countries require also 
that the invention shall be worked in the country 
within a specified time, and if the taxes are not 
paid or the invention worked as required then 
the patent is forfeited. If a person has patented 
his invention in half a dozen countries, where 
such conditions prevail, it will be seen at once 
that it may be a burden for him to meet the re- 
quirements. He should, therefore, before mak- 
ing application for patents know whether or not 
the invention is likely to be in demand in the 
countries in which patents are to be obtained, 
and he should also find out whether he will be 
able to properly place the patents and bring the 
invention to the attention of the right parties. 

Usually the inventor or patentee has more 
than he can properly attend to in exploiting his 
invention in the United States. The above are 
general rules and not always true. The writers 
have in mind one man who did not make a great 
success of his invention in America, but who in 
the last two or three years has made something 



138 FOREIGN PATENTS. 

like $400,000 out of Ms patent rights in Great 
Britain and a few African countries. Many in- 
stances are known where foreign patents have 
proved very valuable, but the parties should 
have a fairly clear and definite idea of how they 
will work the patents and how dispose of them. 

Of course, it is known that in Great Britain, 
Germany, France, Belgium, and, perhaps in 
Austria and Hungary, certain manufactures are 
very largely carried on, and if an invention has 
had its value proved in America, and if the 
owners are prepared to bring it properly to the 
attention of the parties in the countries referred 
to, it pays him to obtain patents in such coun- 
tries and he may realize much money from them. 

Much depends on the character of the inven- 
tion. An invention that would be very profit- 
able in France, or Belgium, or Great Britain 
might be of little or no value in South America 
or Australia. While, on the other hand, there 
are certain mining appliances, some kinds of 
agricultural instruments, inventions pertaining 
to the handling of live stock or natural prod- 
ucts, which may be of more value in South 
America or Australia than in the thickly pop- 
ulated countries of Europe. Certain woodwork- 
ing machinery may be profitable in Canada, 
Norway, Sweden and Kussia, while it would 
be absurd to patent the invention in countries 
that are not great manufacturing centres and 



FOEEIGN PATENTS. 139 

where wood is scarce. An invention may per- 
tain to the handling of fruit in some way and 
be valuable for Spain and Italy and France, 
while it would be without value in northern 
Europe and so on through the whole list. One 
must be governed by the nature of the country 
and whether or not his invention is adapted to 
meet the requirements of such a country. No 
general statement as to the cost, taxes, etc., of 
foreign patents can be given, because these rules 
vary with almost every country, but they are 
at the command of any well-informed patent 
lawyer. 

If the new invention relates to a line which 
has become established and of proved value in 
the United States, then one can almost certainly 
interest foreigners in the invention for other 
countries, but if nothing has been done here and 
the invention is still in somewhat of an experi- 
mental stage and the owner has no special con- 
nections abroad, he had better confine his atten- 
tion to the United States, where there is a wide 
field and a chance to reap a good harvest if the 
invention should prove of value. 



140 



BOOK m. 



CHAPTER I. 

WHAT TO INVENT AND HOW TO INVENT. 

Under tMs title we do not propose to be so 
specific as to tell a man just how to train him- 
self so as to bring forth a good invention or to 
specifically point out the things which he should 
invent in order to make money out of his in- 
ventions, but it is thought an inventor can be 
given such advice as will enable him to invent 
intelligently and prevent him from wasting his 
energies. There is no better way open to a poor 
man to acquire wealth, and at the same time 
confer a lasting benefit upon humanity, than to 
bring forth and perfect a good invention. 

Most inventors invent because they cannot 
help it. Their minds are so constituted that 
new ideas are constantly presenting themselves, 
and they always see chances for improvement 
in some line or other. There was a time when 
the typical inventor had a wild eye, long hair 
and a haggard look, but that day has passed, 



STATE OF THE AKT. 141 

and tlie successful inventor of to-day is a keen 
business man in a way, although not usually 
capable of looking after the details of a busi- 
ness, but sometimes he is. Some of the wealthi- 
est men in America are men who have begun 
life poor and who have brought out some im- 
portant inventions in certain lines of manufac- 
ture, have perfected the inventions and have 
placed them on the market. After doing this, 
they ha;ve kept control of that particular line 
of manufacture — that is to say, they have not 
stopped after inventing a good thing and said 
'' nothing more can be done," but have gone on 
improving and patenting and even purchasing 
patents of others so as to acquire and absorb 
the best means to be had in their particular line. 

Once an invention has proved to be valuable, 
then the cost of a few patents, more or less, is 
immaterial, and it is best to keep that line of 
manufacture covered by patents to as great an 
extent as possible. A man may have a broad 
patent on a machine, and afterward many peo- 
ple may patent improvements on that machine. 
These improvements may be infringements, and 
the broad patent would prevent their use 
without the consent of the first patentee during 
the life of his patent. But, on the other hand, 
the first patentee cannot use the infringements 
without the consent of the later patentee. 

There was a time when it was difficult to 



142 STATE OF THE ART. 

classify inventions and find out just what had 
been done, but now while the patents issued 
number over 600,000, still it is an easy matter to 
find the state of the art in any particular line, 
as all this vast volume of patents is classified 
and subclassified to such an extent that any 
subject within the range of patents can be 
readily searched. There is no occasion, then, 
for a man to go about his inventions in a hap- 
hazard way, and, perhaps, waste years of valu- 
able time as well as much money. 

Before one has gone far with an invention, it 
is, as a rule, advisable to examine the state of 
the art to find out what others have done in this 
particular line. There is hardly a public library 
of any size in America that does not contain 
partial drawings and claims of existing patents, 
at least those issued since 1872, and many such 
libraries contain the full specifications and 
claims of all patents. One who has the time 
can, therefore, himself discover the state of the 
art by going over the matter in the library and 
comparing his invention or his idea as it exists 
in his mind or on paper with what has been 
done before. 

If he finds the field is completely covered he 
can abandon it, but more often he will find 
that while there may be inventions substan- 
tially like his, yet he will get ideas which will 
enable him, if he is a bright inventor, to carry 



STATE OP THE ART. 143 

the art forward further than he originally in- 
tended. Comparatively few inventors have the 
time to do this, and if so, let such a one pnt 
his invention in as good shape as he can and 
send it with a description to some patent law- 
yer whom he knows, or who is recommended 
to him, together with a small fee, usually about 
five dollars, and the attorney will have the art 
searched and will send him copies of patents, 
showing devices as near as may be to his, and 
will further advise him as to the probabilities 
of getting a patent. It is well to make this" 
search, either by attorney or personally, before 
going to great length with the invention, be- 
cause so many inventions have been patented 
that the inventor may find practically his own 
ideas already covered, though they may be 
original with him, so far as he is concerned. 
Often, and, perhaps, usually the inventor 
will go ahead, without any attempt to see what 
has already been accomplished in his line, and, 
of course, after he has gone to the expense of 
spending his time and money, and to the fur- 
ther expense of making a patent application, it 
is a sore disappointment to find that his claims 
are substantially met. If the line of invention 
seems important and the inventor wishes to be 
thoroughly informed on it, he can often secure 
the whole subclass of patents to which it re- 
lates for a comparatively small expenditure. 



144 WHAT TO INVENT. 

Recently tlie cost of patent copies has been 
reduced so tliat one can order a single copy for 
five cents ; a subclass, and get the copies for 
tbree cents apiece ; a class, for two cents 
apiece, and all the patents issued for one cent 
each. It will be seen that one can easily know 
what he has to contend with before he goes 
very far with his invention. On the other 
hand, many inventors have already done so 
much in certain lines that they are thoroughly 
familiar with the art and know practically just 
what has been attempted before their inven- 
tion. In such a case, the proper thing to do is 
to at once file the patent application. It may 
be that the invention is of such a nature that 
one may feel reasonably sure of its novelty, 
and had rather apply at once than wait for an 
examination. It may appear also that there is 
danger of an interference with some other party 
— that is, that another may file an application 
for the same thing, and, if there is reason foi 
haste, then it is well to file the application. 

What to Invent. — What has been said al- 
ready in this chapter relates particularly to 
how a man can acquaint himself fully with the 
art. That which is most important, after all, 
is, perhaps, to know what to invent. Some of 
the most ingenious things have been of no prac- 
tical value, and there have been some inven- 
tions recognized as great inventions which have 



WHAT TO INVENT. 145 

been of no commercial worth. The average 
inventor is not seeking fame as much as he is 
seeking money, and, therefore, he wishes to 
dii'ect his ingenuity in the best commercial 
lines. Let him, therefore, when an invention 
suggests itself to him ask himself first of all, 
what the demand for it will be if it is success- 
ful, as he hopes. 

It is not necessary to confine ingenuity to 
great lines, because some of the greatest com- 
mercial affairs of the country are founded on 
little things, like glove fasteners, matches, 
toothpicks and woodenware, hairpins, hooks 
and eyes and a thousand other things, but he 
should know that whatever his invention is 
there will be a demand for it if it is up to his 
expectations so far as structure is concerned. 
If the invention relates to some staple article of 
manufacture or consumption, and he can devise 
machinery or means to cheapen the said arti- 
cle, he is practically sure of a commercial suc- 
cess, because if he can show any manufacturer 
that he can save him money, he will find a very 
ready listener and find a class of people ready 
to meet him if his invention is properly pro- 
tected. He is certain of being able to put a 
part of the saving into his own pocket if his 
invention is properly managed. If, on the 
other hand, he can make the said article of 
manufacture so that it will cost no more, but 



146 WHAT TO INVENT. 

will be really better, then, too, lie has some- 
thing which will pay him well. If not at once, 
it will in the long run, if the invention is han- 
dled as it should be. One of the most suc- 
cessful inventions, coming under our personal 
knowledge, is of this latter class. The inventor 
had a means of making a well-known article of 
manufacture, so that it was a little more desira- 
ble than it would otherwise be, and it cost no 
more than similar articles made without the 
improvement. The inventor hesitated about 
making the application for a patent, and even 
allowed his first application to lapse, but after- 
ward procured his patent and began making 
his goods. They cost no more than did goods 
of his competitors, and he soon found that 
wherever his goods were offered in competition 
with those of others he received the order, and, 
as a result, his trade increased by leaps and 
bounds, and he realized handsome returns from 
his little invention. 

It is a notorious fact that first inventors 
usually employ complicated means to attain 
the desired result, and that following improve- 
ments usually simplify the means. If one can 
see a way of simplifying a well-known process 
of manufacture or a well-known machine, he 
will usually find, even though he cannot use 
the improvement independently of the original 
inventor, its value will be recognized, and he 



WHAT TO INVENT. 147 

can get a good return for what lie puts into tlie 
invention in the way of time, ingenuity and 
money. Inventions to be profitable need not 
be of either class above referred to, but the in- 
ventor should satisfy himself that there is a 
demand for the invention. Perhaps the inven- 
tion is a toy. Many such have proved wonder- 
fully remunerative. But he should take some 
means to find out whether the toy will be a 
selling one before he goes too far with it. In 
inventions of this kind it is not always possible 
to do so, and it is something of a speculation, 
and a person cannot always tell just how a 
thing will take until it is tried on the market. 
Almost every one can call to mind certain toys 
and games which have been patented, and from 
which the promoters have made fortunes. The 
invention may be a design, and be very profita- 
ble, but usually this line of inventions is con- 
fined to a class of people having more or less 
to do with the manufacture of artistic articles, 
though this is not always the case. 

Sometimes one will conceive a design for an 
article of manufacture other than an ornament, 
or even an ornament which will commend itself 
at once to those who are engaged in the line to 
which the design appertains. Frequently the 
shape given to the invention will be of such 
novelty as to give it such a new function that 
the article can be covered by an ordinary sev- 



148 HOW TO INVENT. 

enteen-year patent. But, generally speaking, 
tlie inventor wastes his ingenuity if lie allows 
Mmself to work on articles for whicli there will 
be no profitable sale, or which, will not in some 
way affect some line of trade or manufacture 
sufficiently extensive to give him a good reward. 
There is no need for him to make such a waste 
of his energy, because there is plenty of room 
for the best inventive skill along remunerative 
lines. 

How to Invents — The inventor, whether of 
patentable inventions or of those which do not 
come within the purview of the patent law, is 
one who is of open mind and is looking con- 
stantly for something new and who is never 
satisfied with what has come to him at second 
hand. Almost any one can invent, though all 
cannot be great inventors, and a natural in- 
ventor will, ordinarily, do more and better 
inventive work than one who is not ; just as a 
natural poet will write more and better poems 
than one who has to labor to bring forth a little 
rhyme. But any one may see room for im- 
provement. 

Do not take things for granted. The steam 
engine of a generation ago looked a veritable 
wonder to the people of that time, but the same 
engine would look crude indeed as compared 
with one of recent build or with an up-to-date 
electric motor. Find out the whys and where- 



HOW TO INVENT. 149 

fores of things, and see if they cannot be im- 
proved. If you see a piece of work being done 
in a way which seems crude, ask yourself how 
it could be done in a better way. If a thing 
does not work to your satisfaction, ask how it 
may be improved so as to approximately meet 
your ideas. If a thing is too expensive, study 
to see how it may be cheapened, and in these 
ways you may discover something of value to 
yourself and the rest of the world. Some great 
inventions have been discovered accidentally, 
but usually the accident has come during the 
course of experiments along the line to 
which the invention relates. If you do not 
accept conditions of things as being ideal, but 
look earnestly for improvement, it will surprise 
you to see how many crudities will come to 
your attention and how many improvements 
will suggest themselves. 

This being done, then discriminate, and see 
what suggested improvements are worth fol- 
lowing up and what are worth patenting and 
exploiting. It is not necessary that the inven- 
tion be in the line of business in which the 
inventor is engaged. It happens as often as 
otherwise that a person will see a new machine 
or a new process for the first time in his life, 
and will ask why some things are not done in 
a certain way or will note at once a means to 
simplify a machine or process, or, perhaps. 



150 HOW TO INVENT. 

change it for the better. All of which goes to 
show that a man who has his eyes open may- 
see improvements almost anywhere. 



151 



CHAPTER 11. 

INTRODUCTION AND SALE OF PATENTED 
INVENTIONS. 

The average inventor is completely taken up 
with securing his patent, and after lie has re- 
ceived it he finds himself at a loss to know 
what to do with his invention. Frequently he 
is a man who has not had much business ex- 
perience and he does not know how or where to 
begin, does not know how to sell the invention, 
to interest capital, or conduct the business gen- 
erally. The best means of handling the patent 
depends on the intention of the inventor as to 
its exploitation. He should know first that he 
has something worth introducing or else he will 
be sorry if he tries to do anything with the in- 
vention. If he has something that is worthless 
and succeeds in palming it off on some one, the 
result will be unsatisfactory in the end. Let 
him, then, satisfy himself that he has a really 
good thing and that it is of value. His next 
step will depend on one of several things : 
First, Is it his intention to stay in the business 
to which the patent relates ? Second, Is he a 



152 INTEODUCTION AND SALE. 

prolific inventor? Third, Is his business al- 
ready established and does the patent simply 
enhance the value of his business? Fourth, 
Does he wish to establish a business founded 
on his patent? Fifth, Does he wish to sell 
patent rights, that is, territorial rights ? Sixth, 
Does he wish to sell out his invention for cash ? 
Seventh, Is he satisfied to have the invention 
worked on a royalty ? 

If the inventor intends to manufacture and 
control his patent himself and has sufficient 
capital to work it, then the advice here given 
would be of no especial value as it would sim- 
ply be a commercial affair and he would use 
ordinary business methods to bring his inven- 
tion before the public. If it is a machine he 
will manufacture the machine, and use every 
legitimate means to advertise it and bring it to 
the attention of the public in the line to which 
the invention relates. He will, if possible, get 
the machine at work where it can be compared 
with others and if it is superior it will eventu- 
ally make its way. If the inventor has not the 
capital himself, and this is usually his predica- 
ment, he must in some way get some one to put 
in money with him to promote his invention. 
In this case let him remember that the money 
is as essential to develop and work the inven- 
tion as the invention is to make capital profit- 
able, and he must therefore be willing to give 



INTBODUCTION AND SALE. 153 

some one a reasonable chance to share in the 
success of the venture and should not expect 
too much for his invention, particularly as the 
invention is usually somewhat in the nature of 
an exx^eriment which may not prove successful. 

Usually the money necessary to properly 
push the invention should command as great an 
interest as the invention itself, but the inventor 
may be at a loss to know how to interest capital 
even on this basis. The first thing necessary is 
to properly exhibit the invention. If the in- 
ventor takes a somewhat crude drawing or even 
a good drawing and attempts to explain his in- 
vention, he will find the result unsatisfactory. 
Nine out of ten will say : "Oh, yes, we under- 
stand it all right," and perhaps they do, but 
even if they do, it will be found that the same 
men will be very much more favorably im- 
pressed if the inventor exhibits to them a work- 
ing model or, better, a full-sized device showing 
the advantages of the invention. 

Men who are working over drawings every 
day for years are themselves constantly sur- 
prised to see how much more favorably they 
are impressed with the real thing than by any 
drawing that might be submitted. It is often 
pretty difficult for an inventor to get money to 
make a model to properly show his invention, 
but let him persevere. If he cannot make a 
model himself, let him find somebody, some 



154 INTRODUCTION AND SALE. 

friend or other, who will advance the money 
and take his pay out of the profits or accept a 
small interest. The invention must be presented 
properly or he never can secure satisfactory re- 
sults. If he is satisfied that the invention is 
valuable, he may make great sacrifices to put 
it in shape. We have in mind one inventor who 
made an immense fortune out of one of the best- 
known steam appliances in the country, and 
have it directly from his son that he was forced 
to sell the bed from under him to get the money 
to make his model and show his invention. The 
inventor had a terrible experience, but he was 
successful, and there is nothing like success. 
We believe with Emerson that the law of com- 
pensation is sure to come in somewhere, and the 
inventor must give some sort of an equivalent 
for what he receives. If he is compelled to 
economize and struggle and make many sacri- 
fices it amounts to nothing if his efforts are 
crowned with success. All great successes 
usually come as a reward to gre?vt efforts. This 
is recognized as a rule and is especially true in 
regard to inventions. Do not therefore be dis- 
couraged. Do not lie by and expect some one 
to hunt up the invention and buy it or push it, 
but persistently bring it to the attention of some 
one who can help you. The inventor need not 
feel any modesty about this, for if the invention 
is good he is doing a favor to the party whom 



INTBODUCTION AND SALE. 155 

he interests. When he has succeeded in get- 
ting his business started, he must then be eter- 
nally vigilant and see that the invention is kept 
up-to-date, that is, he must, if possible, antici- 
pate improvements and cover every novel feature 
by a patent, as when the business is once started 
its profits depend upon the monopoly which the 
patent gives and the cost of a few patents, more 
or less, under such circumstances is of no con- 
sequence. When a business founded on a good 
patent cannot be started by a few people in their 
individual capacities, a favorite means is to pro- 
mote the invention through a joint-stock com- 
pany or corporation. This subject will be treated 
in the following chapter. 

Is the Inventor Prolific?— Our experience 
is that real prolific inventors will not, as a rule, 
be tied down to any one business or line of in- 
ventive work. W e know many men of this kind 
who invent almost constantly and will some- 
times make a great deal of money out of the 
sale of an invention, will then go into business 
and lose it all and will finally bring out some 
other good invention and make another small 
fortune. We have in mind many such people 
as this and do not doubt that many inventors 
who read this will see that the coat fits them. 
Such people are very foolish to attempt to man- 
age any business or to be too closely identified 
with it. To such a one we say : keep on invent- 



156 INTRODUCTION AND SALE. 

ing, bring out your invention, put it in good 
shape to show, then sell your patent rights and 
keep on inventing and selling. If you are like 
many prolific inventors, this is the only way 
you will make any money, and if you are in- 
terested in some of your inventions, that is, in 
a commercial way, let some one else manage 
the business. One man is seldom good at every- 
thing. It is one of the greatest gifts to be able 
to bring forth good inventions, and a man who 
can do this successfully and often cannot ex- 
pect to do everything else equally well, and 
should be satisfied to reap the reward of 
his ingenuity by selling the products of his 
brain without any attempt at commercial 
exploitation. 

Does the Patent Relate to Established 
Business ?— There is a class of shrewd inven- 
tors who are successful manufacturers and 
whose ingenuity comes with the need of mak- 
ing a dollar in the line of business in which 
they are engaged. These men generally manu- 
facture specialties covered more or less by their 
own patents, and this is what makes the business 
profitable. They should, therefore, see to it 
that they keep the line of manufacture pro- 
tected and such a man should not think he 
is the only one who can invent, but should 
take up any meritorious invention in his 
line even though it is invented by some one 



INTEODUCTION AND SALE. 157 

else, because if another invention is nearly 
as good, it means competition and reduced 
profits. 

Territorial Rights.— As much depends on 
the way in which a patent is handled as on the 
invention itself, so far as profits are concerned. 
Many inventors, after patenting a real good in- 
vention, seem to lose interest in the matter and 
let it drop. There is never a good thing for 
which there is a demand that cannot be sold. 
Some quick fortunes have been realized by sell- 
ing out the rights under a patent, under terri- 
torial grants. The inventor is usually capable 
of giving a good explanation of his invention 
and showing up its methods. Let him then, 
after getting his patent, make a model, or if it 
is practicable, a full- sized device and exhibit it 
in the different States, counties and towns. Let 
him engage a few people whom he knows to be 
honest and active to assist him in this work 
and he will find that by putting in hard and 
earnest and persistent work in showing up this 
invention in different communities, he can in 
almost every county find a customer who will 
pay him well for an exclusive county right or 
he may find a customer who will pay more for 
a State right. This can be and is done over and 
over again by enterprising inventors and the re- 
sult is almost always highly satisfactory. Yery 
often an inventor will make an arrangement 



158 INTEODUCTION AND SALE. 

with a manufacturer who will agree to supply 
the invention in certain quantities at a certain 
price. He may retain an interest in this manu- 
facture. He then sells the territorial rights as 
widely as possible and agrees to furnish goods 
at a given price. He thus gets a quick profit 
from the sale of the patent right and a contin- 
uous profit from the manufacture of the goods, 
if the sale proves to be considerable. The in- 
ventor should not ask too much or at least 
should not insist on getting too much for his 
territorial rights, but, as a rule, it is better to ac- 
cept a reasonable offer, even though it seems 
low, for the profit is quick and the expenses 
light. 

Selling a Patent Complete.— If the inven- 
tion is a good one and the patent reasonably 
strong, the inventor can by intelligent and con- 
tinued effort usually interest some one engaged 
in the line of business to which the patent re- 
lates. In this case the invention should not be 
shown to the party whom it is desired to in- 
terest until it can be put in good condition, so 
that no explanations or apologies are necessary. 
If he can show a good thing and the invention 
is capable of speaking for itself, as the saying 
is, he will find parties who are interested in it. 
If it saves a man money, he is quickly in- 
terested. If it bids fair to enlarge his trade, he 
is also interested. The main thing is to have it 



INTRODUCTION AND SALE. 159 

properly presented. Many inventions which, 
are of little or no value are called to the atten- 
tion of manufacturers and capitalists, thus mak- 
ing them lose faith in inventions, and sometimes 
such men, if they really wish to buy an inven- 
tion, will discredit it ; will say boldly that they 
have found the patent is invalid ; will even 
threaten to make the invention or will state that 
it does not interest them ; when, as a matter of 
fact, they are really aiming to buy it cheaply. 
This is the reason an inventor can sometimes 
act better through a third party, although this 
depends somewhat on the character of the peo- 
ple with whom he is dealing and whether or not 
he is in a measure acquainted with them. If it 
can be brought to the attention of proposed 
buyers and shown that the invention will prob- 
ably come into competition with them if they 
do not control it, they are more likely to buy 
the invention and will frequently buy it to pre- 
vent such competition even if they do not intend 
to use the invention directly in their business. 
There is hardly a large manufacturing cor- 
poration in America which does not own scores 
of patents for inventions which it does not use 
and some of them own hundreds and even 
thousands of such patents. If the invention has 
merit and can be brought properly to the atten- 
tion of such people it will usually sell, but the 
inventor should not expect to get the last dollar 



160 INTBODUCTION AND SALE. 

there is in tlie invention, and will usually make 
a mistake if lie does not accept a reasonable 
offer. 

The invention can often be sold by judicious 
advertising. If a well- worded advertisement is 
placed in a daily paper of a large city, it will 
usually attract attention, and some of the 
answers to the advertisement may lead to a sale. 
Advertisements in obscure papers or papers de- 
voted specially to patents and particular lines 
are not so apt to be profitable as those placed 
in well-known daily papers of large circulation. 
It pays to have a well- written description and 
a cut of the invention, which can be sent to the 
parties expressing an interest in it, and the in- 
ventor should be able to make a conservative 
statement as to the probable extent of use of the 
invention, its sale or saving and the profits 
likely to be derived from it. In this, as in every- 
thing else, a system carried out intelligently 
and persistently is almost sure to bring good 
results. There are many ways in which the 
inventor can sell his invention. But he must 
try to sell, keep working and follow up the 
different clues which present themselves. If 
he does this he is almost certain to sell in 
the end. 

Royalties.— There are many manufacturers, 
small and large, who are willing and anxious 
to take up a good invention but who cannot 



INTRODUCTION AND SALE. 161 

spare the capital to buy tlie patent outright. 
Such men will pay a reasonable royalty on 
something which appeals to them and in the 
end will make a handsome thing out of the in- 
vestment, and the result will also be very satis- 
factory to the inventor. The inventor can 
usually get a good income by an arrangement 
of this sort and get very much more out of the 
invention than if he attempted to sell it outright. 
Such an arrangement is usually made by giving 
a license to the manufacturer, which license 
may be exclusive or otherwise, according to the 
nature of the case, and the licensee should be 
willing to pay something in cash as a guaranty 
that the work will be pushed. He should agree 
to make and sell at least a certain number per 
year. He should agree to make returns under 
oath at stated intervals of the amount of his 
sales. He should also agree that the records of 
sale should be open to the licensor. He should 
further agree that the royalties should be paid 
at stated intervals and it should be also under- 
stood and agreed that if the terms of the license 
are not complied with, the license is thereby 
forfeited. 

Caution.— It has been told how the aid of a 
third party may be of service in selling an in- 
vention or patent and in a later chapter it has 
been stated how a promoter can be successfully 
used in some cases. Bat the owner of the patent 



162 INTKODUCTION AND SALE. 

must be on his guard in sucli matters, for it is 
the custom, and has been for many years, for 
agencies and individuals to flood the country 
with advertising matter which is sent chiefly to 
patentees and tells how the advertiser can sell 
patents. As a rule the people sending out this 
matter are unreliable and seek only to get what 
money they can from the patentee. It is seldom 
indeed that most of them effect a sale. It is 
their custom to require a bonus to cover adver- 
tising expenses and other little bills, but this 
bonus is usually for the sole benefit of the per- 
son who claims skill in selling. Where agencies 
advertise to sell patents, it is usually with the 
idea of getting the inventors to file through 
them their patent applications and it is rarely 
they effect a legitimate sale. There are com- 
petent parties who do such work, but their re- 
liability must be ascertained and, as a rule, they 
do not require any cash payments in advance. 
In conclusion, the inventor should not sit 
down and wait after he receives his patent, but 
should gird himself for the struggle which has 
just begun and work hard and constantly until 
he forces the invention to the attention of some 
party who will either work it or buy it. This 
can be done either by his own efforts or by the 
efforts of some party whom he interests. But, 
as a rule, the efforts of any third party must be 
supplemented and augmented by the never- 



INTRODUCTION AND SALE. 163 

ceasing efforts of the inventor himself. If the 
invention is good and properly protected by 
Letters Patent, such efforts as these will eventu- 
ally effect a sale. 



164 



CHAPTER III. 

SALE OR PROMOTION BY JOINT-STOCK COM- 
PANIES OR CORPORATIONS. 

In this chapter it is not proposed to treat of 
joint-stock companies and corporations j^er se, 
but to define their peculiar characteristics and 
powers only so far as they pertain to the sub- 
jects of exploiting or selling inventions. If a 
person has to raise a comparatively large 
amount of money it is not usually easy to find 
one or two people who are willing to risk the 
whole amount or a considerable part thereof in 
an experimental venture, and it is much easier 
to find twenty-five people, for instance, who 
will risk a thousand dollars apiece, than it is 
to find one man who will risk twenty-five 
thousand dollars or two who will risk twelve 
thousand five hundred dollars each. More- 
over, when a person in his individual capacity 
joins another to promote an invention in any 
way, he will usually become a partner in the 
enterprise and so become liable beyond the 
amount of money which he invests. But by 
becoming a stockholder in a legally organized 



PEOMOTION BY COBPOBATION. 165 

corporation, lie only runs the risk of losing his 
investment or a part of it and has, perhaps, a 
better opportunity to get a profit. Usually, 
too, the inventor or patent owner wishes to 
make some money out of his patent quickly, 
as well as to provide himself a continuous in- 
come. If a private person puts up money to 
promote the patent enterprise, he may insist 
that all the money shall go into the business, 
whereas by organizing a corporation and selling 
his invention to it, as described presently, the 
inventor can usually retain a percentage of the 
money actually paid in and in any event can 
retain a large stock interest and his stock can 
be disposed of in greater or less amounts as the 
necessities of the case require. 

Probably a corporation organized to handle 
or exploit a patented thing affords the easiest 
means by which an inventor can market his in- 
vention either to get his money out of it or to 
get it on a business footing. This can be done 
in several ways. We will suppose that the in- 
ventor has a meritorious invention worthy of 
exploitation and that it requires, say, twenty- 
five thousand dollars to start a manufacturing 
company which can properly handle the inven- 
tion. We will suppose that the inventor can 
show that with the expenditure of a certain 
amount and the proper managing of the busi- 
ness, the profits of the concern will pay good 



166 PAYMENT OF CAPITAL. 

dividends on a hundred thousand dollars capi- 
tal. In some States, the corporation laws re- 
quire that the whole capital stock of the cor- 
poration must be paid in in ca'sh or in a good 
cash equivalent and the laws are construed to 
mean that property turned in in lieu of cash 
shall be actually worth the valuation placed 
upon it. But there are many others having 
liberal corporation laws, such as Maine, West 
Yirginia, New Jersey, and several Territories 
and many other States in which a very small 
amount can be paid in in cash and the balance 
in property at such a valuation as the organ- 
izers or stockholders fix. Nearly all States and 
Territories, however, require that the stock at 
its first subscription and issue must be sold at 
par. It is not obvious, then, how one can or- 
ganize a hundred thousand dollar corporation, 
sell twenty-five thousand dollars' worth of stock 
at less than par and provide a large stock inter- 
est for the patentee or patent owner and still 
keep within the letter of the law. It is done in 
this way : We will suppose that an inventor 
has found parties who are willing to risk some 
money in the enterprise and will take sufficient 
stock at, say, seventy cents on the dollar, to 
realize the twenty-five thousand dollars. He 
then with several other parties, more or less, 
according to the requirements of the State in 
which he organizes, incorporates under a cer- 



TREASUKY FUND. 167 

tain name. The incorporators and stockholders 
at their first meeting adopt a resolution for the 
purchase of the patent or patents which it is 
proposed to turft into the company and author- 
ize the proper officers to issue, say, $99,500 
worth of the company' s stock at par, in pay- 
ment for said patents, which would leave $500 
—to make the full $100,000— which must be 
paid in cash. But, of course, this amount may 
be varied and made more or less. The stock 
being issued to the patent owner and the patent 
transfer to the company being duly made, the 
corporation is then in possession of the patent 
rights with no means of working them and the 
former patent owner is in possession of $99,500 
of stock in a corporation having no money in 
its treasury and no means of doing business. 
He then says: "To make my stock valuable 
and to promote the best interests of the com- 
pany I propose to give to the treasurer or some 
other person in trust for the benefit of the com- 
pany $45,000 of said capital stock, which stock 
shall be sold to provide a treasury fund for 
carrying on the company's business." This is 
done and the stock accepted by resolution, 
which, like the former one, is spread on the 
minutes of the company. 

The stock at this point has been legally is- 
sued at par and the whole capital paid in. This 
being done, the owners of the stock, whether 



168 TEEASUEY STOCK. 

the trustee aforesaid, acting under authority, 
or the former patent owner, can sell their stock 
at any price they see fit, whether it be more or 
less than par. The directors of the company 
meet and pass a resolution authorizing the sale 
of sufficient treasury stock held by the trustee 
for the benefit of the treasury, at seventy per 
cent, of its par value, to realize the proposed 
$25,000. This being done, the stock can be 
legally sold to the parties who have agreed to 
take it or to others if necessary, and the com- 
pany is then in possession of $25,000 in its 
treasury and a reserve treasury fund of stock 
which can be sold if need be. The parties, 
agreeing to take the stock at seventy per cent, 
of its value, have their stock legally issued, and 
the former patent owner is in possession of ap- 
proximately fifty-five per cent, of the capital 
stock. This leaves the inventor in safe control 
of the company and if he wishes to sell a few 
thousand dollars' worth of stock he can do so 
and still retain a safe interest, or, at the proper 
time, he can unload entirely, if he prefers to 
do ^. Unless the party who has been instru- 
mental in organizing the company can sell 
sufficient stock to satisfy him with the price 
obtained for his patent, he should, either indi- 
vidually or in connection with some reliable 
friends, retain the controlling interest, that is, 
more than fifty per cent, of the company's 



CONTROLLING INTEREST. 169 

stock. If he does not intend to stay witli the 
company, he can sell all the stock possible or 
wait until the company is well under way and 
sell it, perhaps, for a greater price, but if the 
corporation is intended to do a business with 
which the patentee and associates are identi- 
fied, he and his friends should retain control. 

In almost every corporation, every stock- 
holder is entitled to one vote for each share of 
stock owned or represented by him. It will be 
seen then that if the patentee and his associates 
held less than fifty per cent, of the stock it 
would be possible for the other stockholders to 
combine and elect all the directors and other 
officers of the company which are chosen by the 
stockholders. It is well understood that prac- 
tically all the powers of a corporation are left 
with the directors and if it should happen that 
the directors and the majority interest referred 
to should be inimical to the patentee and 
associates, they might do such acts as would 
make his interest practically worthless. They 
could fill all the offices, vote themselves sala- 
ries to which they might not be justly entitled, 
and in many ways work for their own interests 
to the exclusion of that of the patentee. It is 
well understood that the controlling interest in 
a corporation is necessary unless several of the 
stockholders have some means of knowing that 
the affairs of the company will be honestly ad- 



170 TRUSTEE FOR CORPORATION. 

ministered in the interest of each and every 
stockholder. For this very reason, parties are 
sometimes loath to invest in a corporation unless 
satisfied as to the control. They may, there- 
fore, hold aloof from investing, if the patentee 
and promoter of the corporation is to have the 
controlling interest. In such a case, he can ar- 
range by suitable agreement to have the con- 
trolling interest in the stock pooled, and voted 
in such a way for a definite term that the inter- 
ests of the incoming shareholders and himself 
can be equally looked after. Or he can arrange 
with them that for a certain period each party 
shall be represented by a certain number of 
directors in the corporation. 

If the incoming or first shareholders insist on 
having the controlling interest of the company, 
the inventor may perhaps meet their views and 
protect himself in this way. He can assign his 
patent or patents to some person or corporation 
in trust to hold for his benefit. The trustee 
can then give to the new corporation an exclu- 
sive license to make, use and vend the invention 
and any improvements thereon, but the license 
can stipulate that in the event of the corpora- 
tion being wound up by the Attorney-General, 
or going into the hands of a receiver, or per- 
forming certain specified acts which would be 
injurious to the patentee, then, in such case, the 
license shall be forfeited and the patent with 



SELLING STOCK. 171 

all its rigMs revert to the trustee. There are 
many advantages in handling an invention 
through a corporation having a board of able 
directors. If the men constituting the board 
are good business men, their advice and experi- 
ence are of great advantage in properly pushing 
the invention. Then, as already stated, no one 
is individually liable for the debts, defaults or 
misdoings of another unless it be a case of 
fraud to which he is a party, and no one of 
them is liable for the debts or losses of the cor- 
poration. 

It will be seen that the organization of a cor- 
poration is comparatively simple, but the pat- 
entee may yet be at a loss to know how to 
interest parties to the extent of taking stock. 
This must be by his personal efforts, supple- 
mented, as stated in a preceding chapter con- 
cerning sales, by the efforts of those who can 
help him. Unless he can go to parties known 
to him and interest them directly— parties who 
will from their knowledge rely on him to a cer- 
tain extent as well as on the invention — he must 
have means to show them that money can be 
made out of the enterprise. There is plenty of 
capital seeking investment, but it must be made 
plain that there is a probability of success. To 
show this the inventor should have some means 
of properly showing up his invention. If he 
has sufficient money to build the machine or 



172 PKOSPECTUS. 

article of manufacture, or to illustrate tlie pro- 
cess, as the case may be, lie sliould, by all 
means, do it. It is well then to get up a good 
statement or prospectus, showing just what the 
invention is, what its uses are, the probable ex- 
tent to which it will be used and the profits 
which should be derived under given condi- 
tions. If he can have an illustration of the in- 
vention made, it is well to have such illustration 
on the prospectus. These prospectuses should 
be sent to parties whom he has reason to think 
may have money for investment and he should 
follow this matter up by personally seeing as 
many persons as possible and explaining to 
them every feature of the invention. He 
should also get them, if he can, to make a per- 
sonal inspection of the working invention, if 
such has been made. If the inventor is not a 
man competent to make a good presentation of 
his case, he had better secure the services of 
some one who is well skilled in such business, 
and he can afford to pay him well, but of this 
matter we shall treat in the following chapter 
on promoters. 

The inventor need not be overcautious. He 
must bear in mind that if the invention he offers 
is really a good thing, he is working an advan- 
tage to the people whom be interests and he 
must remember that it takes hard and persist- 
ent work to Hoat any enterprise. Let him con- 



BUILDING UP A BUSINESS. 173 

sider while doing it that if lie carries the inven- 
tion through, he raises himself from, perhaps, 
a life of poverty to one of comparative comfort. 
Let him remember the statement attributed 
to Solomon : ^* Yet a little sleep, a little slum- 
ber, a little folding of the hands to sleep, so 
shall thy poverty come upon thee as a robber 
and thy want as an armed man." Of course, 
it is nice if one can sit down, send out his pros- 
pectuses and have investors come trooping up 
anxious to subscribe to his stock, but things do 
not happen in this way and as ^'eternal vigi- 
lance is the price of liberty," so eternal hustle 
is the price of success. Let him go into this 
matter with enthusiasm and work intelligently 
and earnestly, even at the risk of boring some 
few people, and he will be surprised to see what 
results he can accomplish. One can do any- 
thing in reason if he only works hard enough 
and makes sufficient sacrifices. It is a good 
scheme to introduce an invention by means of a 
corporation if the promoter is honestly intent 
on building up a good business, because, with 
all due respect to the inventor, he is not usually 
a man of details, is not always accustomed to 
the minutse and intricacies of a commercial 
business and is much more successful if he has 
the cooperation of men trained in this line. 

In this chapter the term promoter is used to 
define the one who instigates the organization 



174 COMBINING CORPORATIONS. 

of the corporation, but tlie term is used gen- 
erally and in distinction of the definite promo- 
ter who has come to have a recognized place in 
the commercial world and to whom it is pro- 
posed to devote a chapter. 

An example has been given of a hundred 
thousand dollar corporation in which it was 
proposed to raise $25,000 as a cash working 
capital. It will be understood from this that 
the terms and conditions can be varied indefi- 
nitely. Perhaps a shrewd inventor who is or- 
ganizing a corporation has in mind the combin- 
ing of several other concerns engaged in an 
analogous business. In such case he should 
make his corporation relatively large. He may 
not need more than $25,000 in money ; he may 
not need even so much as this. But he may 
have in mind the absorption of perhaps half a 
dozen concerns already established. The other 
concerns may have more business and he may 
have an improved means of carrying on the 
business so that by combining with them he 
gets the field and the better means of work- 
ing it. 

We will suppose that he can show that the 
combined profits of the concern under existing 
conditions would pay dividends on say two 
million dollars of capital and perhaps he can 
show that by the combination which will reduce 
expenses and by the introduction of his improved 



PREFERRED STOCK. 175 

means, the concern will pay good dividends on 
five million dollars. Let him organize his new 
company for five million dollars, paying in his 
capital in the manner already set forth, but 
setting aside a relatively large proportion of the 
stock for the use of the treasury. This is rather 
an ambitious attempt and, of course, the man 
who simply brings in his improved means 
should not expect to keep the controlling in- 
terest in the combination effected by the new 
corporation. Each party to the combination 
will, of course, expect a fair representation, 
but after he has organized, and possibly before, 
he can arrange with the parties, so that each 
will turn over its property or at least the man- 
agement and control of the business to the new 
corporation, taking in payment therefor a cer- 
tain amount of the stock, and after this com- 
bination is effected the inventor should find 
himself in possession of sufficient stock in a 
solid corporation to amply pay him for his in- 
ventions and patents which he has contributed. 
He should also find himself in possession of 
stock sufficient to well pay him for the labor 
involved in effecting the combination and, 
finally, he will have a powerful corporation be- 
hind his improvements ready to push them to 
success. 

Preferred Stock.— Many investors who are 
not speculators would rather feel reasonably 



176 PREFERRED STOCK. 

sure of a small income than to have a fair pros- 
pect of getting a large income if the latter was 
contingent on a chance of failure. Sometimes, 
therefore, it is better in organizing a new cor- 
poration to provide for a certain amount of pre- 
ferred stock which shall take the first earnings 
for a dividend, even though the common stock 
may earn much more than the preferred stock, 
or may earn nothing. It will be supposed, as 
in the first instance given, that it is necessary 
to raise twenty-five thousand dollars in cash. 
When the corporation is organized, instead of 
providing the treasury fund as suggested, a 
portion of the forty-five per cent, of stock de- 
voted to treasury purposes— say twenty-five 
thousand dollars of it — is made preferred stock 
to draw six or seven per cent, interest, as the 
case may be. Then instead of offering the-stock 
for a relatively low price it is offered at par. 
The nature of the stock is this : It is not in tlie 
nature of bonds secured by mortgage on the 
property of the corporation, but it is provided 
by the articles of incorporation that the earn- 
ings of the corporation shall be applied to pay 
the fixed dividend called for on the preferred 
stock before any such earnings are applied as 
dividends on the common stock. There may 
be sufficient business in sight to make it evident 
that the preferred stock dividends will certainly 
be earned. In this case, the stock will readily 



PBEFEREED STOCK. 177 

sell for par and will be worth much more than 
the common stock. Preferred stock may sell for 
par — say one hundred dollars per share — when 
perhaps the common stock will hardly sell at 
thirty dollars, but the preferred stock can never 
earn more than the amount stipulated, say six 
per cent. If then the corporation is successful 
and earns in a year enough to pay twenty per 
cent, in dividends, six per cent, will go to pay 
the preferred stock dividend and the balance 
will be dividends on the common stock. If this 
condition of things occurs then the common 
stock will, of course, be worth more than twice 
as much as the preferred stock. 

In small corporations it is not customary to 
issue preferred stock, but there is no special 
reason why it should not be done and some- 
times it affords the readiest way of raising the 
necessary money. The State laws as to pre- 
ferred and common stockholders vary and the 
by-laws of the company also have something to 
do with the conditions governing the preferred 
and common stock. In many cases the preferred 
stockholders have no vote, while in other cases 
they have the same voting privileges as the 
common stockholders. This should be pro- 
vided for in the articles of incorporation and, 
if thought necessary, the preferred stockholders 
may even be given an advantage in voting 
power. The preferred stock may consist in this : 



178 PEEFERRED STOCK. 

That it draws the same dividends as the common 
stock, but it may be provided that each share 
of preferred stock shall have one full vote and 
each share of common stock a fractional vote. 
This will, of course, make the preferred stock 
more valuable, not only on the start but for the 
whole existence of the corporation. 

It may be that the offer of preferred stock at 
par will not be sufficient to induce people to 
invest, and if the showing is not quite good 
enough to insure this investment it is well to 
have sufficient treasury stock so that for every 
share of preferred stock subscribed a share of 
common stock can be given as a bonus. This 
gives the subscriber a particularly good show- 
ing and it may be necessary and advisable to do 
this. In this, as in other cases, the patentee or 
promoter must be governed by circumstances 
and must gauge his capital and amount of stock 
to be sold and given as a bonus so as to still 
leave him, if possible, with the controlling in- 
terest, or with an equivalent therefor. In or- 
ganizing a corporation the capital should be 
made not too large but still large enough so 
that the first stock can be sold at less than par. 
It is a peculiarity of human nature that a per- 
son must think that he is getting a bargain and 
must believe he is buying stock less than par 
on the start to induce him to invest. We do 
not know how to account for this. People who 



BONDS. 179 

are constantly dealing in stocks and know that 
the ultimate value must depend on what they 
pay are still affected by the par value — that is 
to say, if a thing is worth one hundred thou- 
sand dollars and is stocked for ten thousand 
dollars, a man familiar with stocks would know 
that the stock is worth one thousand dollars a 
share, but he still would wish to buy for less 
than par, even if this were one dollar, and if the 
company is overstocked he does not make 
allowance for the overstocking if he buys the 
stock for a good deal less than par. This is a 
singular fact but it is one borne out by the 
experience of every person who has had any- 
thing to do with organizing and promoting 
corporations. The organizer should therefore 
make his capital large enough so that he can 
cater to this feeling and sell his stock at a sub- 
stantial reduction from its par value and still 
realize what he thinks is right. 

Bonds.— Instead of raising money by the 
sale of treasury stock or by providing a treasury 
fund, it may be preferable to mortgage the 
property of the company, if it have tangible 
property, to secure a definite amount of bonds 
which can then be sold — their price, of course, 
depending on whether the mortgaged property 
and the income therefrom is ample to meet the 
interest and principal represented by the bonds. 
This bonding is a simple matter and the prin- 



180 SUBSOEIPTION LIST. 

ciples governing it are practically the principles 
relative to the ordinary bond and mortgage of 
real or other property, except that the bond in- 
stead of issuing to a single person is usually 
issued by a trustee, to whom the mortgage is 
given, and instead of being a single bond is made 
in the form of many bonds. There is no rule 
governing the par value of bonds, but their de- 
nomination is usually one thousand dollars and 
to make them specially acceptable both prin- 
cipal and interest should be made payable in 
gold. 

Subscription List— A few parties having 
agreed to take part in the organization of the 
corporation and to take a certain amount of 
stock at a certain price, no subscription list is 
usually required, but if it is not known how 
many parties will participate and it is desired 
to get enough to raise a certain amount of 
money, and if such an amount is really essen- 
tial, then it is well to provide a subscription 
list, which the prospective stockholders may 
sign and by which they agree to take a certain 
number of shares of stock at a certain price per 
share. Under ordinary conditions the price 
must be par, but as pointed out the stock may 
be sold at a different price by first paying it in 
by way of a property transfer and then selling 
it. If this is to be done the manner in which 
it is to be done should be set forth in the sub- 



SUBSCRIPTION LIST. 181 

scription list. The subscription list should also 
state under what State or Territory the corpora- 
tion is to be organized, the total amount of its 
capital stock, the amount to be paid in and how 
it is paid in, and all the conditions governing 
the organization. Everything governing the 
organizing and starting of the company should 
be fully and frankly set forth, so that each sub- 
scriber may know all the conditions and cannot 
say that he signed under a misapprehension 
and cannot accuse any of the parties to the or- 
ganization of fraudulent or sharp practices. If 
the organization is to be successful the parties 
thereto must start with a frank and full under- 
standing of all the circumstances of the case. 
While usually there are strong temptations to 
depart from this rule, yet it will be found in 
the end that it is the only sure and safe one. 
It is better to start right, even though it be a 
little harder to make the start. It will be seen, 
of course, that the form of a subscription list 
will vary according to circumstances and in the 
Appendix forms have been given which can be 
varied to suit most cases. 



182 



CHAPTER IV. 



THE PEOMOTEE 



The promoter is one of the new things of the 
past generation which does not come under the 
head of patentable subjecfc-matter. A few years 
since and he was a curiosity ; a few years later 
he was looked upon as a person to be avoided 
as one would avoid the plague, and finally, in 
the face of much tribulation, he has come to 
have a defined and recognized place in the busi- 
ness community. It is true tliat there are still 
many promoters, so called, who are of no earth- 
ly use, who are unmitigated bores and who are 
nuisances generally.. But the genuine article, 
the real promoter, is a person of a good deal of 
ability and of a great deal of use in the world. 

This is now generally understood. The pro- 
moter who is worthy of the name will not 
undertake to push to completion a business 
scheme unless he can see that the scheme is a 
good one and promises profit to himself, his 
client and investors. In connection with the 
term many people will immediately call to 
mind the famous *' Humbug" Hooley, of Lon- 



THE PEOMOTiai. 183 

don, and the havoc he wrought among investors 
and among the nobility, but, notwithstanding 
the fact that Hooley and many others have 
been examples of all that is bad in business, 
still there are promoters who are honest, capa- 
ble and valuable members of the business world. 
There is an old saying to the effect that it is 
what a man saves that makes him wealthy, and 
not what he makes, but this doctrine is all 
right for infants in finance, though on second 
thought, even the primitive financiers are un- 
able to see how to save out of an ordinary 
salary or income the amount represented by 
the colossal fortunes which have been accumu- 
lated in this country within the last few years. 
A man has time, no doubt, to lay up treas- 
ures in heaven during his short career, but if 
he wishes to get rich he cannot do it by the 
old-fashioned process, though, no doubt, this 
is commendable. At the present time wealth is 
usually made quickly, if at all. A party finds 
himself in possession of a good thing, and he 
pushes it, and makes the most of it while he 
can do so, and before competition cuts his 
profit. It is necessary to do business on a big 
scale and rush it to the last limit while it can 
be done at a profit, and this can be done by 
means of a large corporation better, perhaps, 
than in any other way. The connection be- 
tween this subject and the text, to wit, the 



Ibi THE PEOMOTER. 

promoter, is that many of the eminent finan- 
ciers and business men of America have first 
been promoters, and, in fact, many of them are 
nothing else now, and the successful promoter 
must be paid, because he succeeds in helping 
his clients, who therefore are made wealthy by 
the same process which makes him wealthy. 
It is doubtless understood that if a stock com- 
pany be successfully promoted on the lines 
already laid out it is one of the quickest ways 
known to make a great deal of money, and it 
may be perfectly legitimate so far as the in- 
ventor, promoter and investors are concerned, 
for it should be the case that the promoter, by 
interesting the investors in the company and 
invention, works a benefit to all parties con- 
cerned. 

A promoter is one who encourages and car- 
ries forward a business scheme with a view of 
getting capital interested in it, and more espe- 
cially one who carries forward such a scheme 
by means of a joint-stock company or corpora- 
tion. This may be by organizing an original 
corporation to acquire certain property and af- 
terward manipulate and work it in a business 
way, or it may be in the organizing of a large 
company, beginning to be technically known 
as a trust, for the purpose of absorbing a series 
of smaller corporations. This is an age of spe- 
cialties and specialists, and it is found, as a 



THE PKOMOTER. 185 

rule, that a skilled specialist can do much bet- 
ter in Ms line than can a person not so specially 
skilled, even though the latter may be a very 
able man. For this reason, in disposing of a 
patent or a patent interest by means of a joint- 
stock company or otherwise, the patentee may 
not be competent or sufficiently skilled to pro- 
mote the company himself, and it may be to his 
interest to call in the service of a skilled pro- 
moter. In doing this, let him ascertain, first, 
that the promoter is skilled ; secondly, that he 
is honest. This being done, he will find that 
the promoter asks so much for his services that 
he will hesitate about employing them. But, 
remembering the old adage that *'Half a loaf is 
better than no bread," he will probably make 
terms with the promoter. In doing this he 
should be put to no actual expense, because 
the promoter will not take up the matter pro- 
posed unless it is promising, and if this is the 
case he will ask for a large contingent interest. 
If the results are to be in cash, he will expect a 
substantial percentage of the cash, and if a part 
of the receipts are stock, he will expect a good 
interest in the stock, and he is worth it. There 
was a time when investors, if they invested at 
all, insisted on being the first in an enterprise, 
unless it was already paying, because they 
wished to be sure of ' ' getting in on the ground 
floor," and while this is still true, yet these 



186 THE PKOMOTEE. 

people recognize the value of the promoter's 
services, and are willing to consider that the 
person who formulates the new scheme and 
carries it forward to success is worthy of his 
hire, and should receive substantial recognition. 

It is generally known that the bulk of the 
work, either in organizing a new company and 
interesting capital, or in efliecting a combina- 
tion of established concerns, falls on the pro- 
moter, and, as above stated, investors expect to 
pay for this work. It is this very work which 
makes the proposed scheme profitable. It is no 
small undertaking to combine large interests 
which, for instance, have up to the moment of 
combination been battling with each other, or 
to induce large investments in an untried 
scheme. As an instance of the promoter's 
recognized value, it is said that a Pittsburg 
iron manufacturer who in 1898 combined some 
of the immense iron and steel industries of the 
country under a single management, made over 
$3,000,000 out of the operation, and while this, 
of course, came out of the combination, yet he 
was well worth the price, because the saving 
effected was something enormous, and only a 
skilled man, knowing thoroughly the people 
with whom he was dealing, could carry the 
combination into effect. 

If a party or parties wish to sell the patent 
rights by means of a corporation organized for 



THE PEOMOTEE. 187 

the purpose, and cannot see their way clear to 
do it themselves, they had better make connec- 
tions with a good promoter. Promoting a new 
enterprise is a difficult thing to do. One must 
be never-tiring in presenting the matter to the 
right people, and the matter must also be pre- 
sented rightly. If the scheme is a large one, it 
is as easy to float as a small one, and perhaps 
easier, if only the right people can be reached. 
There is money enough for any enterprise, no 
matter how gigantic, if it only promises suffi- 
cient returns, but the average man will find it 
easier to get an interview with the President of 
the United States than with most any well- 
known capitalist and investor. He will find the 
man he tries to see so hedged about with offices, 
office boys, clerks, secretaries ; so many ques- 
tions asked him concerning his business, and 
so many obstacles placed in his way that he 
vTill, nine times out of ten, give the matter up in 
despair. But the skilled promoter does not 
despair. He knows that he has a good thing, 
and he is going to see ifc through. He has 
found out, too, that brass is almost as good as 
gold if rightly used, and he knows exactly how 
to use it. He is a gentleman, but he has found 
out that cheek must be cultivated and used. 
He knows nearly everybody, and, if necessary, 
will know the rest of mankind. If it is neces- 
sary to interview any man on earth he will 



188 THE PEOMOTER. 

manage to interview him. He gets himself in- 
vited to dinners, the Lord knows how, and he 
gets into exclusive sets in some way or other. 
He comes to a capitalist with an introduction 
which cannot be ignored, he wriggles and twists 
and works, and finally gets what he is after. 

The capitalist of to-day is the promoter of 
yesterday. If he has succeeded a few times he 
ceases to be a promoter except on his own ac- 
count, but there are many smart, energetic 
promoters who are in this transitory stage from 
unknown private citizens to well-known capi- 
talists, and their services can be enlisted in 
promising enterprises. It is our experience 
that it often pays to use them, though care 
must be exercised in their selection, as in 
everything else. A third person who is really 
competent, and who has a good-sized interest 
at stake, can frequently talk up an enterprise 
better than the prime mover, and when ques- 
tions begin to reach some definite conclusion, 
and propositions are being made, and perhaps 
accepted, it is sometimes an advantage to be 
able to say that one must see another party be- 
fore deciding. 

Finally, we consider the promoter who is 
really successful, one of the smartest and most 
energetic men on earth. He does not lend him- 
self to questionable schemes, but if there is 
merit in one with which he is connected he is 



THE PEOMOTER. 189 

going to see the matter pushed to a successful 
issue, if it is possible to be done. He takes 
large risks ; lie spends money freely, lie loses 
nonchalantly, and if he wins he wins large 
stakes, and is entitled to them. We commend 
him to people who are engaged in carrying for- 
ward any new enterprise, unless the prime 
mover happens, as is sometimes the case, to be 
skilled in this line himself. Let the inventor 
make an alliance with a good promoter and 
carry through one good scheme to a successful 
conclusion, and he has had a liberal education 
in financial methods, and will see how money 
is made quickly instead of by the old-time pro- 
cesses referred to above ; he may even graduate 
into a promoter-inventor, and finally into a 
capitalist himself. We are not moralizing on 
whether the acquisition of quick wealth is 
strictly in accordance with good ethics, but are 
simply trying to show the not-over-rich in- 
ventor how he can compete with others and 
gather in his share of money, and whether or 
not the game is worth the candle we leave to 
him. 



190 
OFFICIAL FEES. 

Fees payable to the Patent Office must be 
paid in advance and upon making application 
for any action in which a fee is payable. 

The following is a schedule of fees for pat- 
ents, trade-marks, labels, prints, etc. : 
On filing each original application for a 

patent, except in' design cases, . $15.00 
On issuing each original patent, except 

in design cases, . . . .20.00 
In design cases : 
For three years and six months, . 10.00 

For seven years, 15.00 

For fourteen years, . . . .30.00 
On filing each caveat, . . . .10.00 
On every application for the reissue of a 

patent, 30.00 

On filing each disclaimer, . . . 10.00 
On an appeal for the first time from the 
Primary Examiners to the Exam- 

iners-in-Chief, 10.00 

On every appeal from the Examiners-in- 

Chief to the Commissioner, . . 20.00 
For certified copies of printed patents : 
For specification and drawing, per 

copy, .06 

For the certificate, 25 

For the grant, . . . . . .50 

For certifying to the duplicate of a 
model, . ... . . .50 



OFFICIAL FEES. 191 

For manuscript copies of records, for 
every one hundred words or frac- 
tion thereof, $0.10 

If certified, for the certificate, addi- 
tional, 25 

For uncertified printed copies of the 
specifications and accompanying 
drawings of patents, each, . . .05 
When ordered by subclasses, each, . .03 
When ordered by classes, each, . . .02 
And when the entire set of all patents 
granted is ordered, each, . . . .01 
For the drawings, if in print, . . . .05 
For copies of drawings not in print the 

reasonable cost of making them. 
For recording every assignment, agree- 
ment, power of attorney or other 
paper, of three hundred words or 

under, 1.00 

Of over three hundred and under one 

thousand words, . . . .2.00 
Of over one thousand words, , . 3.00 
On filing an application for registration 

of a trade- mark, . . . .25.00 
On filing an application for registration 

of a label, 6.00 

On filing an application for registration 

of a print, 6.00 



APPENDIX 



195 



APPENDIX 



In tlie Appendix is given a few of the forms 
which are more often used, and while any spe- 
cific form is not essential still it is well to fol- 
low the custom in this respect as an instrument 
of the usual character can be more readily con- 
strued. 

Ko specific form of acknowledgment is given 
on the several forms of assignment because this 
varies with different States and it is well to fol- 
low the form used in the State where the in- 
strument is executed. 

It will be noticed that in the assignment 
before issue, a request is made to the Commis- 
sioner of Patents to have the patent issue to the 
assignee. This is not essential, but is usually 
advisable. If, however, there is any reason 
why it should not so issue, the clause making 
the request can be omitted. 



196 APPENDIX. 

ASSIGNMENT OF AN ENTIEE INTEREST IN AN 

INVENTION BEFORE THE ISSUE OF 

LETTERS PATENT. 

Whereas, I, John Jones, of the City, County and 
State of New York, have invented certain new and 
useful Improvements in Can Openers for which I am 
about to make application for Letters Patent of the 
United States, which application I have signed and 
executed this day of .. 189 . . ; and 

WhereaSt James Smith, of Boston, in the County of 
Suffolk and State of Massachusetts, is desirous of ac- 
quiring the entire interest in the aforesaid invention 
and in the Letters Patent to be issued therefor ; 

NoWj Therefore, To all whom it may concern, be it 
known that for and in consideration of the sum of 

dollars and other valuable considerations to me 

in hand paid, the receipt of which is hereby acknowl- 
edged, I, the said John Jones, have sold, assigned and 
transferred, and by these presents do sell, assign and 
transfer unto the said James Smith the whole right, 
title and interest in and to the aforesaid invention, as 
set forth in the application above referred to, and in 
and to the Letters Patent which may issue therefor, 
and I hereby authorize and request the Commissioner 
of Patents to issue the said Letters Patent to the said 
James Smith as the Assignee of my entire right, title 
and interest therein, for the sole use and behoof of the 
said James Smith and his legal representatives. 

In Testimony Whereof, I have hereunto set my hand 
and affixed my seal this day of 189 . . . 



Witnesses 



(Acknowledgment.) 

If the assignee is a corporation the preamble 
would be as follows : 



APPENDIX. 197 

" Whereas, I, Jolin Jones, of tlie City, County and 
State of New York, have invented certain new and 
useful Improvements in Can Openers for which I am 
about to make application for Letters Patent of the 
United States, which application I have signed and 
executed this day of 189 . . ; and 

" Whereas, the Nineteenth Century Manufacturing 
Company, a corporation organized and existing under 
the laws of the Territory of Arizona and doing busi- 
ness in the City, County and State of New York, is 
desirous of acquiring the entire interest in the same " ; 

The remainder will be substantially like the 
body of the assignment already given. 



If both, parties to the transfer are corpora- 
tions, the preamble will, of course, set forth 
where each company does business and under 
what State or Territory it is organized. 



ASSIGNMENT OF THE ENTIEE INTEREST IN 
LETTEES PATENT. 

If the patent has already issued it should be 
identified by title, number and date, and the 
assignment may then be as follows : 

Whereas, I, John Jones, of the City, County and 
State of New York, did obtain Letters Patent of the 
United States for an Improvement in Can Openers, 

which Letters Patent are numbered and bear 

date the twenty-fourth day of January, 1899 ; and 

Whereas, 1 am now the sole owner of the said patent 
and of all rights under the same ; and 

Whereas, James Smith, of Boston, in the County of 



198 APPENDIX. 

Suffolk and State of Massacliusetts, is desirous of ac- 
quiiing the entire interest in the same ; 

NoWf Therefore, To all whom it may concern, be it 
known that for and in consideration of the sum of 

dollars and other valuable considerations to me 

in hand paid, the receipt of which is hereby acknowl- 
edged, I, the said John Jones, have sold, assigned and 
transferred, and by these presents do sell, assign and 
transfer unto the said James Smith the whole right, 
title and interest in and to the said Improvement in 
Can Openers and in and to the Letters Patent there- 
for aforesaid, the same to be held and enjoyed by the 
said James Smith for his own use and behoof and for 
the use and behoof of his legal representatives to the 
full end of the term for which said Letters Patent are 
granted as fully and entirely as the same would have 
been held and enjoyed by me had this assignment and 
sale not been made. 

In Testimony Whereof, I have hereunto set my hand 

and affixed my seal this day of 189 . . . 

JOHN JONES. (Seal.) 
Witnesses : 

A. B. 

C. D. (Acknowledgment.) 



ASSIGK-MENT OF APPLICATIOJS" AFTER FILING. 

If the patent has not been issued but the ap- 
plication has been filed, the form would be 
substantially like the above, except that instead 
of quoting the number and date of the patent, 
the serial number and date of filing should be 
given, and there can be a request to the Com- 
missioner of Patents, as in form 1, to issue the 
patent to the assignee. 



APPENDIX. 199 

ASSIGNMENT OF AN UNDIVIDED INTEREST IN 
LETTEES PATENT. 

If the assignee is to have an undivided inter- 
est in the invention and patent, the form will 
be as follows : 

Whereas, I, John Jones, of the City, Comity and 
State of New York, did obtain Letters Patent for an 
Improvement in Can Openers, which Letters Patent 

are numbered and bear date the twenty-fourth 

day of January, 1899 ; and 

Whereas, James Smith, of Boston, County of Suf- 
folk and State of Massachusetts, is desirous of acquir- 
ing an interest in the same ; 

Now, Therefore, To all whom it may concern, be it 
known that for and in consideration of the sum of 

dollars and other valuable considerations to me 

in hand paid, the receipt of which is hereby acknowl- 
edged, I, the said John Jones, have sold, assigned and 
transfeiTed, and by these presents do seU, assign and 
transfer unto the said James Smith an undivided one- 
half part of my whole right, title and interest in and 
to the said invention and in and to the Letters Patent 
therefor aforesaid, the said undivided one-half part to 
be held and enjoyed by the said James Smith for his 
own use and behoof and for the use and behoof of his 
legal representatives to the full end of the term for 
which said Letters Patent are granted as fuUy and 
entirely as the same would have been held and enjoyed 
by me had this assignment and sale not been made. 

In Testimony Whereof, I have hereunto set my hand 

and affixed my seal this day of 189 . . . 

JOHN JONES. (Seal.) 
Witnesses : 

A. B. 

C. D. (Acknowledgment.) 



200 APPENDIX. 

GRANT OF A TEREITOEIAL INTEREST AFTER 
THE ISSUE OF PATENTS. 

Whereas, I, John Jones, of the City, County and 
State of New York, did obtain Letters Patent of the 
United States for an Improvement in Can Openers, 

which Letters Patent are numbered and bear 

date the twenty-fourth day of January, 1899 ; and 

Whereas, I am now the sole owner of the said patent 
and all rights under the same in the territory herein- 
after mentioned ; and 

Whereas, James Smith, of Boston, County of Suf- 
folk and State of Massachusetts, is desirous of acquir- 
ing an interest in the same ; 

Noiv, Therefore, To all whom it may concern, be it 
known that for and in consideration of the sum of 

dollars and other valuable considerations, to 

me in hand paid, the receipt of which is hereby ac- 
knowledged, I, the said John Jones, have sold, assigned 
and transferred, and by these presents do sell, assign 
and transfer unto the said James Smith all the right, 
title and interest in and to the said invention as secured 
to me by the Letters Patent above referred to, for, to 
and in the States of Maine and New Hampshire, and 
the Counties of Essex and Suffolk in the State of 
Massachusetts, and for, to or in no other place or 
places, the same to be held and enjoyed by the said 
James Smith within and throughout the territory 
mentioned, but not elsewhere, for his own use and 
behoof and for the use and behoof of his legal repre- 
sentatives, &c. 



"Witnesses : 

(Acknowledgment.) 



APPENDIX. 201 

SIMPLE FOEM OF SHOP-RIGHT LICENSE. 

In consideration of dollars, to me in hand paid 

by the Ajax Manufacturing Company, a corporation 
organized and existing under the laws of the State of 
Pennsylvania and doing business in Philadelphia 
in said State, I do hereby license and empower the 
said Ajax Manufacturing Company to manufacture in 
said City of Philadelphia the Improvement in Sole 
Edge Burnishing Machines, for which Letters Patent 

of the United States numbered were granted to 

me on the seventeenth day of January, 1899, and to 
sell the machine so manufactured throughout the ter- 
ritory of the United States to the full end of the term 
for which said Letters Patent are granted. 

Signed at the City and County of Philadelphia, 
State of Pennsylvania, this first day of February, 1899. 

A. B. 

"Witnesses : 
C. D. 
E. F. 



FOEM OF LICENSE WITH EOYALTY. 

This Agreement, made this eighth (8th) day of Feb- 
ruary, in the year one thousand eight hundred and 
ninety-nine (1899) by and between A. B., of Washing- 
ton, District of Columbia, party of the first part, and 
C. I). , of Pittsburgh, Allegheny County, Pennsylvania, 
party of the second part, Wiinesseth : 

The party of the first part did on the seventh (7th) 
day of February, 1899, obtain Letters Patent of the 
United States for an Improvement in Rock Drills, 

which Letters Patent are numbered , and the 

party of the second part is desirous of entering into 
the manufacture of said Rock Drills ; 

Now, Therefore, In view of the premises, and in con- 



202 APPENDIX. 

sideration of the sum of one dollar by each to the 
other paid, the parties have agreed as follows : 

First: The party of the first part hereby grants to 
the party of the second part the full and exclusive 
right to make, use and vend the aforesaid invention, 
referred to in the Letters Patent above named, 
throughout all that part of the territory of the United 
States lying east of the Mississippi Eiver, including 
the State of Minnesota, and in no other places, to the 
end of the term for which said Letters Patent were 
granted, subject, however, to the conditions herein- 
after named. 

Second: The party of the first part further agrees to 
protect the Letters Patent herein referred to, to pro- 
ceed at his expense against infringers of the said pat- 
ent and to defend the party of the second part if he 
should be sued for infringement, if said alleged in- 
fringement consists in the manufacture of the Kock 
Drill herein referred to. 

Third: The party of the second part, as a guaranty 
that this contract will be carried out in good faith, has 
paid to the party of the first part the sum of one 
thousand dollars, the receipt of which is hereby ex- 
pressly acknowledged by the party of the first part, 
and the party of the second part further agrees to pay 
to the party of the first part the sum of ten dollars for 
each rock drill of the kind specified above manufac- 
tured and sold by him, such payments to be made 
every sixty days and within ten days from the time of 
making returns as specified below. 

Fourth: The party of the second part agrees to 
manufacture and sell not less than twelve hundred 
machines in any one year and agrees to make full and 
true returns under oath on the first days of January, 
March, May, July, September and November of each 
year of the number of Rock Drills made and sold by 
him and agrees further that his books of sales shall 



APPENDIX. 203 

be open at all reasonable times to the inspection of the 
party of the first part, and within ten days after each^ 
return day the party of the second part agrees to pay 
to the party of the first part the amount of royalties 
due. 

Fifth : Upon the failure of the party of the second 
part to make returns or to make payment of license 
fees, as herein provided, for more than thirty days 
after the dates herein named, the party of the first 
part may terminate this hcense by serving on the party 
of the second part a written notice to that effect, but 
the party of the second part shall not thereby be dis- 
charged from any liability to the party of the first part 
for any license fees due at the time of the service of 
said notice, and of the one thousand dollars paid by 
the party of the second part no part of such sum shall 
be considered as being applied on royalties herein 
mentioned. 

In Witness Whereof, the parties above named have 
hereunto set their hands and seals the day and year 
first above written at Pittsburg, in the County of Alle- 
gheny and State of Pennsylvania. 

A. B. 
Witnesses: 0. D. 

E. F. 
G. H. 

SUBSCEIPTION AGREEMENT BEFORE OEGANIZA- 
TlOl^ OF A CORPORATION. 

Whereas, John Jones, of the City, County and State 
of New York, is the owner of Letters Patent of the 

United States No , dated February 7th, 1899, 

for Improvement in Sewing Machines ; also of Letters 

Patent of the United States No , dated January 

24th, 1899, for an Improvement in a Pressure Foot for 
Sewing Machines, and 



204 APPENDIX. 

Whereas, the said John Jones proposes to organize 
a corporation under the General Laws of the State of 
, to be known as the Jones Manufacturing Com- 
pany, with a capital stock of one hundred thousand 
($100,000.00) dollars, divided into shares of a par 
value of one hundred ($100.00) dollars each. Said 
corporation to be for the purpose of engaging in the 
manufacturing of machinery and tools of all kinds and 
especially of the maufacture of sewing machines and 
pressure feet under the above-named patents, but also 
to do any business within the general scope of a manu- 
facturing company, and it is desired by the under- 
signed to become a shareholder in the above corpora- 
tion ; 

Now, Therefore (insert name of subscriber), does 
hereby promise and agree to, and with the said John 
Jones, in consideration of the promises of the said 
John Jones hereinafter stated, that he will pay to the 
said John Jones or to any person or corporation to 
whom he may assign this agreement, on demand, the 

sum of dollars, being the subscription price of 

shares of the capital stock of the said corpora- 
tion, or such part of said subscription price as may be 
called for. The stock thus paid for to be delivered at 
the earliest possible moment after the organization of 
the company, and meanwhile proper receipts or scrip 
to be issued to the undersigned. 

This Agreement is conditioned as foUows : 

First : The said John Jones shall procure other bona 
fide subscriptions aggregating in all not. less than 
twenty-five thousand ($25,000.00) dollars of the capital 
stock of the said corporation on the same terms as 
stated herein. 

Second : On the organization of said corporation, 
the said John Jones shall make an assignment to the 
said Jones Manufacturing Company by which he shall 
set over to the said company the whole right, title and 



APPENDIX. 205 

interest in and to tlie Letters Patent for sewing ma- 
chines and pressure feet herein named. 

Third : The said John Jones shall accept in pay- 
ment for the said patents fifty thousand ($50, 000. 00) 
dollars of the capital stock of the Jones Manufacturing 
Company herein named. 

Fourth : The said John Jones, on his part, in con- 
sideration of the foregoing, promises to use his best 
endeavors to obtain the said twenty-five thousand 
($25,000.00) dollars of subscriptions and his best 
efforts to perfect the organization of the said corpora- 
tion. 

Witness our hands and seals this day of 

1899, at the City, County and State of New York. 

(Seal.) 

( " ) 

( " ) 

If the corporation is to have a certain amount 
of preferred stock the fact should be set forth 
in the agreement and the character of such pre- 
ferred stock described, that is to say, if it is to 
Ibe six per cent, cumulative stock or six per 
€ent. non-cumulative, or whatever the nature of 
its preferment — the matter should be distinctly- 
set out in the agreement. In fact, any perti- 
nent matter to the organization should be clearly 
set forth in the agreement so that there can be 
no misunderstanding between the parties. Ob- 
viously this agreement will differ greatly with 
different cases, but its general tenor will enable 
a skilled person to use it to meet the exigencies 
of almost any case. 



206 APPENDIX. 

The form of a certificate will vary somewhat 
in different States, but we present two forms ; 
one for any stock and one providing for pre- 
ferred stock, which are adapted to meet the 
requirements of the New Jersey Corporation 
Law, and these can easily be changed to con- 
form to the laws of other States or Territories. 

Form having no preferred stock : 

CERTIFICATE OF INCOEPOEATION 
OF THE 

(Here insert name of company.) 

First : The name of the Corporation is (here insert 
company's name.) 

Second : The location of its principal office in the 

State of New Jersey is at No Street, in the city 

of Jersey City, County of Hudson. The name of the 
agent therein and in charge thereof upon whom pro- 
cess against this Corporation may be served is (here 
insert name of agent. ) 

Third : The objects for which, and for any of which, 
the Corporation is formed are to do any or all of the 
things herein set forth, to the same extent as natural 
persons might or could do and in any part of the 
world, to wit : (here enumerate the special objects of 
the corporation.) 

In Furtherance of, and not in limitation of, the gen- 
eral powers conferred by the Laws of the State of 
New Jersey, it is hereby expressly provided that the 
Company shall have also the following powers : 

To manufacture, purchase or otherwise acquire, to 
hold, own, mortgage, pledge, sell, assign and transfer, 
or otherwise dispose of, to invest, trade, deal in and 
deal with goods, wares and merchandise and property 
of every class and description. 



APPENDIX. 207 

To acquire the good will, rights and property, and 
to undertake the whole or any part of the assets and 
liabilities, of any person, firm, association or corpora- 
tion, and to pay for the same in cash, stock of this 
Company, bonds or otherwise. 

To apply for, purchase, or otherwise acquire, and to 
hold, own, use, operate, and to sell, assign, or to other- 
wise dispose of, to grant licenses in respect of or 
otherwise turn to account any and all inventions, 
improvements and processes used in connection with, 
or secured under Letters Patent of the United States 
or elsewhere, or otherwise, and with a view to the 
working and development of the same to carry on any 
business, whether manufacturing or otherwise, which 
the Corporation may think calculated directly or indi- 
rectly to effectuate these objects. 

To enter into, make, perform and carry out con- 
tracts of every kind with any person, firm, association, 
corporation, without limit as to amount, to draw, 
make, accept, endorse, discount, execute and issue 
promissory notes, bills of exchange, warrants, bonds, 
debentures, and other negotiable or transferable in- 
struments. 

To have one or more offices, to carry on all or any of 
its operations in business, and without restriction to 
the same extent as natural persons might or could do, 
to purchase or otherwise acquire, to hold, own, to 
mortgage, sell, convey, or otherwise dispose of, with- 
out limit as to amount, real and personal property of 
every class and description, in any state or territory of 
the United States, and in any foreign country or place. 

In General to carry on any other business in con- 
nection therewith, whether manufacturing or other- 
wise, and with all the powers conferred by the Laws of 
New Jersey on corporations under the act hereinafter 
referred to. 

The duration of the Corporation shall be unlimited. 

Fourth : The total authorized capital stock of this 



208 APPENDIX. 

corporation is dollars ($ ), divided into 

( ) shares of one hundred dollars ($100) 

each. 

Fifth ; The names of the incorporators (the post 
office address of each is No Street, Jersey- 
City, New Jersey), and the number of shares sub- 
scribed for by each, the aggregate of which ($ ) 

is the amount of capital with which the Company will 
commence business, are as follows : 

Name P. O. address No. of shares. . . . , . 

Sixth : The Board of Directors shall have power, 
without the assent or vote of the stockholders, to 
make, alter, amend and rescind the by-laws of this 
corporation, to fix the amount to be reserved as a 
working capital, to authorize and cause to be executed 
mortgages and liens without limit as to amount upon 
the real and personal property of this Corporation. 

With the consent in writing and pursuant to the 
vote of the holders of a majority of the stock issued 
and outstanding, the Directors shall have power and 
authority to sell, assign, transfer or otherwise dispose 
of the whole property of this Corporation. 

The Directors shall from time to time determine 
whether and to what extent, and at what times and 
places and under what conditions and regulations the 
accounts and books of the Corporation, or any of them, 
shall be open to the inspection of the stockholders ; 
and no stockholder shall have any right of inspecting 
any account or book or document of the Corporation 
except as conferred by statute or authorized by the 
Directors, or by resolution of the stockholders. 

The Board of Directors, in addition to the powers 
and authorities by statute and by the by-laws ex- 
pressly conferred upon them, may exercise all such 
powers and do all such acts and things as may be 
exercised or done by the corporation, but subject, 
nevertheless, to the provisions of the statute, of the 
charter, and to any regulations that may from time to 



APPENDIX. 209 

time be made by tlie stockholders, provided that no 
regulations so made shall invalidate any provisions of 
this charter, or any prior acts of the Directors which 
would have been valid if such regulations had not 
been made. 

The Corporation may in its By-laws confer powers 
additional to the foregoing upon the Directors, and 
may prescribe the number necessary to constitute a 
quorum of its Board of Directors, which number may 
be less than a majority of the whole number. 

The Board of Directors may, by resolution passed 
l)y a majority of the whole Board, designate two or 
more of their number to constitute an Executive 
Committee, which Committee shall for the time being, 
as provided in said resolution or in the By-laws of 
said Corporation, have and exercise all the powers of 
the Board of Directors in the management of the 
business and affairs of the Company, and have power 
to authorize the seal of the Corporation to be affixed 
to all papers which may require it. 

The Directors shall have power to hold their meet- 
ings, to have one or more offices, and to keep the 
books of the Corporation (except the stock and trans- 
fer books) outside of this State, at such places as may 
"be from time to time designated by them. 

It is the intention that the objects specified in the 
third paragraph shall, except where otherwise ex- 
pressed in said paragraph, be nowise limited or 
restricted by reference to or inference from the terms 
of any other clause or other paragraph in this Charter, 
but that the objects specified in each of the clauses of 
this paragraph shall be regarded as independent 
objects. 

The Undersigned, for the purpose of forming a Cor- 
poration in pursuance of an Act of the Legislature of 
the State of New Jersey, entitled " An Act Concerning 
Corporations " (Revision of 1896), and the various acts 
amendatory thereof and supplemental thereto, do 



210 APPENDIX. 

make, record and file tMs certificate, and do respec- 
tively agree to take the number of shares of stock 
hereinbefore set forth, and accordingly hereunto have 
set our hands and seals. 

Dated, Jersey City, N. J., 
In presence of 

(Seal.) 

( " ) 

( " ) 

( " ) 



State of ) 

County of j " 

Be it remembered that on this day of A. D» 

eighteen hundred and ninety- before the under- 
signed personally appeared who I am satisfied 

are the persons named in and who executed the 

foregoing certificate, and I having first made known 
to them and each of them the contents thereof, they 
did each acknowledge that they signed, sealed and de- 
livered the same as their voluntary act and deed. 



Received in the Hudson County, N. J., Clerk's 

Office, 189 . . , and recorded in the Clerk's Record 

No on Page 

Clerk. 

Endorsed " Filed 189 . . 

Georqe Wuets, Secretary of State." 

Under Article Third, which specifies the ob- 
jects of the corporation, care should be taken 
to give the company sufficient scope to do any 
business it may ever wish to do, even though 
the business is not contemplated at the time of 
organization. 



APPENDIX. 211 

The form above given can be varied to suit 
different States as stated above, but in very' 
many States blanks can be obtained from the 
Secretary of State or from dealers in law blanks^ 
which are suitable for the purpose. 



PREPEERED AND COMMON STOCK. 

CERTIFICATE OF INCORPORATION 

10-cent internal 

revenue stamp OF THE 

cancelled. 

(Here insert name of company). 

First : The name of the Corporation is the (here in- 
sert company's name). 

Second : The location of the principal office in the 

State of New Jersey is at No Street, in the 

City of Jersey City, County of Hudson. The name of 
the agent therein and in charge thereof, upon whom 
process against this corporation may be served, is 
(herein insert name of agent). 

Third : The objects for which and for any of which, 

the corporation is formed, are to do any or all of the 

things herein set forth, to the same extent as natural 

. persons might or could do and in any part of the 

^ world, to wit : (here enumerate the special objects of 

the corporation.) 

In furtherance of, and not in limitation of, the gen- 
eral powers conferred by the Laws of the State of New 
Jersey, it is hereby expressly provided that the com- 
pany shall have also the following powers : 
r- To do any or aU of the things herein set forth, to 
1 the same extent as natural persons might or could do, 
V and in any part of the world. 

To manufacture, purchase or otherwise acquire, to 
hold, own, mortgage, pledge, sell, assign and transfer. 



212 APPENDIX. 

or otherwise dispose of, to invent, trade, deal in and 
deal with goods, wares and merchandise and property 
of every class and description. 

To acquire the good will, rights and property, and 
to undertake the whole or any part of the assets and 
liabilities, of any person, firm, association or corpora- 
tion, and to pay for the same in cash, stock of this 
company, bonds or otherwise. 

To apply for, purchase, or otherwise acquire, and to 
hold, own, use, operate, and to sell, assign, or to other- 
wise dispose of, to grant licenses in respect of or 
otherwise turn to account any and all inventions, im- 
provements, and processes used in connection with, or 
secured under. Letters Patent of the United States or 
elsewhere, or otherwise, and with a view to the work- 
ing and development of the same to carry on any busi- 
ness, whether manufacturing or otherwise, which the 
corporation may think calculated directly or indirectly 
to effectuate these objects. 

To enter into, make, perform and carry out con- 
tracts of every kind with any person, firm, association 
or corporation, and, without limit as to amount, to 
draw, make, accept, endorse, discount, execute and 
issue promissory notes, biUs of exchange, warrants, 
bonds, debentures and other negotiable or transferable 
instruments. 

To have one or more offices, to carry on all or any 
of its operations and business, and without restriction 
to the same extent as natural persons might or could do, 
and to purchase or otherwise acquire, to hold, own, to 
mortgage, sell, convey or otherwise dispose of, without 
limit as to amount, real and personal property of 
every class and description, in any State, Territory or 
Colony of the United States, and in any foreign coun- 
try or place. 

To do any or all the things herein set forth to the 
same extent as natural persons might or could do. 



APPENDIX. 2ia 

and in any part of the world, as principals, agents, 
contractors, trustees or otherwise. 

In general, to carry on any other business in con- 
nection therewith, whether manufacturing or other- 
wise, and with all the powers conferred by the Laws 
of New Jersey upon corporations under the Act here- 
inafter referred to. 

The duration of the corporation shall be urdimited. 

Fourth : The total authorized capital stock of this 

corporation is dollars, ($ ) divided into 

( ) shares of one hundred dollars ($100) 

each. 

Of said stock shares shall be preferred stock, 

and the balance, shares, shall be common or 

general stock. 

Said preferred stock shall entitle the holder thereof 
to receive out of the net earnings, and the company 
shall be bound to pay a fixed yearly cumulative divi- 
dend at the rate of but not exceeding per 

centum, payable before any dividend shall be set 

apart or paid on the common stock. Such preferred 
stock shall, at the discretion of the company, be sub- 
ject to redemption at par on 19 .... , or on any 

dividend day thereafter. 

Such preferred stock may be issued as and when 
the Board of Directors shall determine. 

The holders of preferred stock shall, in case of 
liquidation or dissolution of the company, be entitled 
to be paid in full, before any amount shall be paid to 
the holders of the general or common stock. 

The holders of such preferred stock may choose 

of the Directors, and the remainder of the 

Board shall be chosen by the common or general stock- 
holders. 

Fifth : The names of the incorporators (the post- 
office address of each is No Street, Jersey 



214 APPENDIX. 

City, N. J.), and the number of shares subscribed for 

by each, the aggregate of which ($ ) is the 

amount of capital with which the Company will com- 
mence business, are as follows : 

Name P. O. Address Number of shares 



Sixth : The Board of Directors shall have power, 
without the assent or vote of the stockholders, to make, 
alter, amend and rescind the By-Laws of this Corpora- 
tion, to fix the amount to be reserved as working cap- 
ital, to authorize and cause to be executed mortgages 
and liens without limit as to amount upon the real and 
personal property of this Corporation. 

With the consent in writing and pursuant to the 
vote of the holders of a majority of the stock issued 
and outstanding, the Directors shall have power and 
authority to sell, assign, transfer or otherwise dispose 
of the whole property of this Corporation. 

The Directors shall from time to time determine 
whether and to what extent, and at what times and 
places and under what conditions and regulations, the 
accounts and books of the Corporation, or any of them, 
shall be open to the inspection of the stockholders ; 
and no stockholder shall have any right of inspecting 
any account or book or document of the Corporation, 
except as conferred by statute or authorized by the 
Directors, or by a resolution of the stockholders. 

The Board of Directors, in addition to the powers 
and authorities by statute and by the By-Laws ex- 
pressly conferred upon them, may exercise all such 
powers and do all such acts and things as may be ex- 
ercised or done by the Corporation, but subject, nev- 
ertheless, to the provisions of the statute, of the 
Charter, and to any regulations that may from time to 
time be made by the stockholders, provided that no 
regulations so made shall invaHdate any provisions of 
this Charter, or any prior acts of the Directors which 



APPENDIX. 215 

'would have been valid if such regulations had not 
been made. 

The Corporation may in its By-Laws confer powers 
additional to the foregoing upon the Directors, and 
may prescribe the number necessary to constitute a 
quorum of its Board of Directors, which number may 
be less than a majority of the whole number. 

The Board of Directors may, by resolution passed 
by a majority of the whole Board, designate two or 
more of their number to constitute an Executive Com- 
mittee, which Committee shaU for the time being, as 
provided in said resolution or in the By-Laws of said 
Corporation, have and exercise all the powers of the 
Board of Directors in the management of the business 
and affairs of the Company, and have power to author- 
ize the seal of the Corporation to be affixed to all 
papers which may require it. 

Neither the Directors nor the members of the Ex- 
ecutive Committee nor the President nor Vice-Presi- 
dent shall be subject to removal during their respec- 
tive terms of office except for cause, nor shall their 
terms of office be diminished during their tenure. 

The Directors shall have power to hold their meet- 
ings, to have one or more offices, and to keep the 
books of the Corporation (except the stock and trans- 
fer books) outside of this State, at such places as may 
b)e from time to time designated by them. 

It is the intention that the objects specified in the 
third paragraph shall, except where otherwise ex- 
pressed in said paragraph, be nowise limited or re- 
stricted by reference to or inference from the terms 
of any other clause or other paragraph in this Char- 
ter, but that the objects specified in each of the clauses 
of this paragraph shaU be regarded as independent 
objects. 

We, the undersigned, for the purpose of forming a 
Corporation in pursuance of an Act of the Legislature 
of the State of New Jersey, entitled *' An Act Concern- 



216 APPENDIX. 

ing Corporations " (Eevision of 1896), and the various 
acts amendatory thereof and supplemental thereto, do 
make, record and file this certificate, and do respec- 
tively agree to take the number of shares of stock 
hereinbefore set forth, and accordingly have hereunto 
set our hands and seals. 
Dated Jersey City, N. J., 
In the presence of 



.....(Seal.) 

( " ) 

( " ) 

( " ) 

State of ) 

County of P^** 

Be it remembered that on this day of 

A. D before the undersigned personally ap- 
peared who I am satisfied are the per- 
sons named in and who executed the foregoing cer- 
tificate, and I having first made known to them, and 
each of them, the contents thereof, they did each ac- 
knowledge that they signed, sealed and delivered the 
same as their voluntary act and deed. 

lO-cent internal 

revenue stamp 

cancelled. 

Keceived in the Hudson County, N. J., Clerk's 

Office, ^1 , and recorded in Clerk's 

Becord No on Page 

Clerk. 

Endorsed " Filed 

Secretary of State." 

If the stock is to be non-cumulative the w^ord 

'^non" can be inserted before ''cumulative." 

ASSIGNMENT OF SUBSCRIPTION. 

Know all men by these presents, 
That I, in consideration of One 



APPENDIX. 217 

Dollar, lawful money of the United States, to me paid 
before the ensealing and delivery of these presents, 
the receipt whereof is hereby acknowledged, and for 
other good and valuable considerations, have sold, as- 
signed, transferred and set over, and by these presents da 

sell, assign, transfer and set over unto my right, 

title and interest as a subscriber to and an incorpor- 
ator of the Company, a corporation organized 

under the Laws of the State of New Jersey, to the ex- 
tent of shares, and I do hereby request and 

direct the said Company to issue the certificate for 

said shares to and in the name of said 

or such other person as he may name. 

In witness whereof, I have hereunto set my hand and 
seal this day of , 189 . . 

[L.S.] 

Sealed and delivered in the presence of 



219 



INDEX. 



ABANDONMENT PAGE 

of application 79 

of experiments 47 

of invention . . , 79 

of invention, by disclaimer 71 

of invention, by express declaration 79 

revival of application 79 

ACCIDENT 

causing reissuable faults 75 

ADDITION 

to composition of matter 92-94 

to mechanical patent 92 

AGGREGATION 

distinguished from combination 41 

not patentable 40 

ANTIQUITY OF PARTS 

never negatives novelty of combinations 20 

APPEALS 

from examiners to board of examiners-in-chief. . . 61-62 
from board of examiners-in-chief to Commissioner 

of Patents 61-62 

from Commissioner to the Court of Appeals of 

District of Columbia 61-63 

interferences 70 

APPLICATION 

abandonment of 79 

amendments of 59 

as constructive reduction to practice 68 



220 INDEX. 

APPLICATION PAGE 

examination of 57-58 

fees due upon filing 190 

final fee for letters patent 60 

forfeited 80 

for reissues 77 

importance of early 67 

importance of proper preparation of 51-52 

important statutes relating to 53 

more than two years after sale or public use .... 47 

of executors or administrators 37 

reexamination of 59 

rejection of 51-59 

what constitutes a complete 51-56 

ART OR PROCESS 

patent law meaning of the word 23 

when included in same application with instrumen- 
talities 23 

ASSIGNMENTS 

acknowledgment of 128 

authenticated, how 128 

of inventions 130 

of patents 130 

recording of 129-130 

right to make by undivided interests 135 

ATTORNEYS 

importance of employing good 52 

BROADENED REISSUES 

when too late to apply for 75 

BURDEN OF PROOF 

on questions of prior use 47 

CAVEATS 

how to secure substantially the same benefits 29 

merely evidence 29 

of little value 27 

requirements 30 

% 



INDEX. 221 

CAVEATS PAGE 

term of 27 

when of advantage to file 29 

CLAIMS 

for an art 24 

for combinations 92 

function of 57 

infringing, and not in same letters patent 84 

insufficient 51 

COMBINATION 

claim for, not to be broadened 92 

dissolved by omission of any one element 92 

distinguished from aggregation , 41 

of old devices, having new mode of operation 20 

patentability of 20 

COMMISSIONEE OF PATENTS 

appeals to, from board of examiners-in-chief 61-62 

appeals from, to Court of Appeals of District of 
Columbia 61-63 

COMPOSITIONS OF MATTER 

claims for 94 

defined 22 

infringement 94 

requirements in specification 22 

COPYKIGHTS 

author and his assigns right to print and vend 109 

copy of record 115 

countries having copyright relations 126 

definition of as to engraving, cut, print 110 

entry of copyright 115 

exclusive right of authors to dramatize and translate. 110 

failure to deposit 117 

false claim for and penalty for 119 

fees for 115-116 

general issue 124 

importation not permitted, and exceptions thereto 113-114 



222 INDEX. 

OOPYEIGHTS PAGE 

infringement 121-122 

injunction 123 

new editions of foreign books may be 117 

newspapers and magazines may be imported 113 

no action after two years 124 

notice of . , 118 

notice of on decorative articles 119 

penalties 121-122 

printed from type set in tlie United States 112 

printing or importing without permission 113-116 

postmaster to give receipt 118 

separate entries 125 

term of 110 

title or description to obtain Ill 

two copies to be deposited 112 

when to deposit copies of subsequent editions 117 

who to prevent importation 116 

CONTRIBUTION 

between joint inventors 34 

OOEPORATIONS 

advantages of 164 

advantages of retaining control in 169 

as defendants in patent cases , 90 

bonds of 179 

difference between, and individual 164 

directors in 169 

form of assignment of patents to 197 

how to interest 172 

how to organize 166 

illustration of how to organize 166-167 

introduction and sale of patented inventions by 164 

nature of preferred stock in 175 

preferred stock in , 175 

prospectus of 172 

selling stock of 171 

states having liberal laws relating to 166 

% 



INDEX. 223 

COSPOBATIONS page 

stockholders in 169 

subscription lists of 180 

DATE 

of invention, in interference actions 67 

DESCBIPTION 

fullness of 56 

DESIGN 

duration of 25 

distinction between and structural patents 25 

fees for 190 

how not infringed 25 

relate to what 25 

what are subjects of 24 

DISCO VEEY 

patent law meaning of the word 42 

DISCLAIMERS 

defined 71 

object of 71 

DOUBLE USE 

not invention 39 

DRAWINGS 

constitute part of letters patent 51-56 

EMPLOYEB AND EMPLOYEE 

employee must make the application 36 

implied license to 36 

may employ one to invent 36 

EQUIVALENTS 

among ingredients of compositions of matter 94 

defined 85 

EXAMINATION 

of apxjlications 57 

EXAMINEBS-IN-CHIEF 

appeals to board of 61-62 

who composes 62 



224 INDEX. 

EXECUTORS AND ADMINISTEATORS page 
applying for letters patent 37 

EXPERIMENTS 

do not amount to prior or public use 48 

EXPERIMENTAL USE 

distinguished from '* public use " 48 

what constitutes 48 

FAULTS 

which cause patents to be reissuable 71 

FEES 

various government 190 

FORMS 

assignment of entire interest before issue of patent. 196 

assignment of entire interest to corporation, 197 

assignment of entire interest in letters patent 197 

assignment of application after filing 198 

assignment of subscription in corporation 216 

assignment of an undivided interest in letters patent 199 

certificate of incorporation 211 

grant after issue of patent 200 

of license with royalty 201 

simple form of shop license 201 

subscription agreement before organization of cor- 
poration 203 

FOREIGN COUNTRY 

knowledge of use in, prior to patentee's invention. . . 47 

FOREIGN PATENTS 

expenses connected wit?h 137 

how governed in relation to . . 137 

instances of valuable 138 

when advantageous to take out 138 

GRANTS 

difference between and assignment 132 

of rights under letters patent. 132 



INDEX. 225 

HOW TO INVENT page 

as to discrimination 149 

by observation 149 

invention accidentally discovered 149 

not necessary to be in a certain line 149 

remarks 140 

when too expensive 149 

IMPKOYEMENT 

a subject of a patent 23 

defined 22 

JNFBINGEMENT 

after patent has expired 89 

by a single claim 84 

by assignor 91 

by carriers 92 

by government 90 

by private corporations 90 

by publi-c corporations 90 

defined 82 

extends only to United States and Territories 89 

intent as a feature of 87 

joint owners of patents 91 

not until patent issues 88 

number of persons may be guilty of 86 

of art 93 

of composition 94 

of design 94 

of manufacture 93 

remedies 94 

INOPERATIVENESS 

a cause of reissuability 74 

INJUNCTION 

for infringement 95 

preliminary not granted until patent sustained 95 

INTERFERENCES 

defined 64 

evidence of invention in 68 



226 INDEX. 

INTEKFERENCES page 

in what cases 64-65 

nature of 67 

preliminary questions must be settled before dec- 
laration of 66 

INVENTORS 

introduction and sale of patented inventions by 151 

must make application in United States 31 

prolific 155 

' should not conceal anything 57 

women as 32 

INVENTION 

absent from product of mechanical skill. . . 39 

defined. 42 

determined to some extent by negative rules 41 

distinction between invention and mechanical skill.. 39 

may be owned by other than the inventor 32 

mere aggregation not 40 

mere combination of old devices having no new mode 

of operation not . . 20 

mere enlargement not 85 

mere improvement in workmanship not 38 

mere substitution of equivalents not 85 

mere substitution of superior materials not 42 

necessary to patentability 42 

new use of old process or thing not 39 

what constitutes 42 

when workman or mechanic may produce an 35 

INVENTIONS 

as a means for avoiding destructive competition. . . 18 

as a means to wealth 17 

how to approximate the value of 17 

how to produce valuable 140 

importance of proper protection 19 

important statutes relating to 53 

introduction of 151 

sale of patented. 151 



INDEX. 227 

INVENTIONS PAGE 

successful 17 

to be valuable should be patented .. 18 

value of little 16 

what are not patentable 43 

what are patentable 20 

INTRODUCTION OF PATENTED INVENTIONS 

advantage of working device 153 

advice as regards the 151 

by advertising 152-160 

by a business. 152 

by Joint-stock companies or corporations 164 

by manufacturers 160 

by prolific inventor , 155 

by third party 159 

by territorial grants 157 

depends on circumstances, , 151 

depends on intention of inventor 151 

first step necessary to 151 

how to interest others 154 

must have something worth introducing 151 

must not be discouraged in 154 

what some inventors have to contend with 154 

when relating to established business 156 

JOINT PATENT 

for sole invention voids the patent 34 

JOINT PATENTEES 

are tenants in common 91 

what constitutes 34 

JOINT-STOCK COMPANIES 

introduction and sale of patented inventions by 164 

(See Corporations.) 

KNOWLEDGE 

in foreign country 47 

inventor presumed to have, of state of the art 40 



328 INDEX. 

LABELS PAGE 

defined 106 

fee for registering 107 

relates to what 106 

LAPSE OP TIME 

before applying for reissue = . . 75 

LETTERS PATENT 

claims of , . 57-84 

constructive notice to all persons 40 

duration of 1-53 

LICENSES 

defined 132 

duration of 133 

implied 36-133 

written or oral 132 

MANUFACTUEER 

introduction of patented inventions by 160 

MACHINE 

defined 20 

how claimed 21 

MANUFACTURE 

infringement of , 93 

patent law meaning of the word 21 

MARKING 

effect of not 87 

patented article should be 87 

process or art , . . . 88 

MARKETING BEFORE ISSUE OF PATENT 

bearing of foreign patents on 88 

MORTGAGE 

defined 132 

recording of 132 

NEW USE 

of old thing not invention. 39 

% 



INDEX. 229 

NOVELTY PAGE 

as affected by prior abandoned experiments 47 

as affecting patentability 20 

tests of 42 

PATENTABILITY 

prerequisites of 54 

PATENTEES 

a few famous 7 

PATENTS 

as a blessing to the public 10 

consideration given for 2-6 

creatures of statute 3 

duration of 1-53 

effect on trade 7 

importance of 5 

issued for United States and Territories 89 

may be owned by others than inventor 32 

modern application of the term 2 

not a monopoly 2 

notice to public 40 

origin and nature 1-2 

undivided interests in 134 

value of 16 

who may obtain 31 

PATENT OFFICE EMPLOYEES 

cannot obtain patents 37 

PEINCIPLES 

not patentable 21 

PEIOE ABANDONED EXPEBIMENTS 

as affecting novelty 47 

PRINTS 

defined 106 

distinguished 106 

fee for 107 

PRIOR USE 

burden of proof on who alleges 47 



230 INDEX. 

PRIOR USE PAGE 

in foreign country when negatives novelty 47 

in this country negatives novelty 46 

PRIOR PRINTED PUBLICATION 

negatives novelty 47-54 

PRIORITY 

questions of, between rival inventors, how settled. . 64 

PROCESSES 

claims for 24 

patent law meaning of the word 23 

PUBLIC USE 

for more than two years before application 47 

what constitutes 48-49 

PROMOTERS 

a distinct application of term 182 

introduction and sale of inventions by 182 

uses of 184 

REDUCTION TO PRACTICE 

importance of 68 

RECORDING 

of assignments 129 

of grants 129 

REISSUES 

applications for 77 

broadened 75 

delay in applying for 75 

SALE OF PATENTED INVENTIONS 

advantage of working device 153 

advice as regards the 151 

as to improvements 155 

by advertising 152-160 

by joint-stock companies and corporations 164 

by prolific inventors 155 

by royalties 160 

by third party 159 

depends on what to effect 151 



INDEX. 231 

SALE OF PATENTED INVENTIONS PAGE 

first step necessary to 153 

false sales 161 

how to interest others in the 153 

if inventor has no money, how to effect 152-166 

must have something 151 

must not be discouraged 154 

of patent complete 158 

territorial rights 159 

SIGNATUBES 

to drawings 54 

SKILL, MECHANICAL 

meaning of the phrase 39 

SOLE INVENTION 

distinguished from joint invention 34 

not inconsistent with received mechanical assistance 34 
not inconsistent with specially sought information.. 35 

STATE OF THE AKT 

fees for copies of patents 144 

importance of examination 143 

libraries for state of the art 142 

subclass of patents 142 

STOCKHOLDERS IN CORPORATIONS 

rights of 169 

SUBSTITUTION 

as affecting infringement 85 

SUGGESTIONS TO INVENTORS 

distinguished from joint invention 34 

TITLE 

by assignment 128 

TRADE-MARKS 

characteristics of 97 

defined 97 

differ from patents 101 

geographical name as 100 

good only on certain class of goods 102 



232 INDEX. 

TRADE-MAKKS page 

illustrations of good and of bad 97-98-99 

interfering 103 

object of registration 101 

owner may sue in State courts for infringement of 97-100 

registration of 100 

registration of confers no additional right 100 

requirements of 101 

value of 104 

what constitutes infringement of 105 

UTILITY 

to what extent necessary to patentability 20 

WARRANTY 

of title 134 

WHAT TO INVENT 

as to complicated means 146 

as to demand 145 

as to simplifying a well-known process or machine.. 146 

cannot always tell value of invention 147 

importance of demand in knowing 147 

importance of little things 145 

invention usually complicated at first 146 

machinery or means to cheapen some staple article 145 

value of designs 147 

when a better article is produced 145 



LEAg'09 



